Domestic Abuse Bill

Stella Creasy Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 28th April 2020 Commons Chamber

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

Mr Deputy Speaker, I hope that you can hear me.

I start by congratulating the hon. Member for Hyndburn (Sara Britcliffe) on her extraordinary maiden speech. It is difficult to make a maiden speech at the best of times. I think that her mum would have been extremely proud of her, and I join her in wishing her dad a happy birthday. Many Labour Members are extremely grateful for what she said about her predecessor.

This is a Bill that many of us have fought for, waited for and wanted for a long time. Before the covid-19 crisis, we had already seen the highest levels of domestic abuse in our society for the past five years, so we know that the pressure is as urgent as it is. I join my Front-Bench colleagues in calling for an emergency fund to tackle the issues created by covid-19 by providing a safe environment for everybody to stay at home in. I support the work of my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson) in relation to the Bill to ensure that we give women the rights they deserve.

In the short time available to me, I want to take up the Secretary of State’s challenge on how we can strengthen the Bill by setting out a number of areas in which I hope we, as a House, can make progress together. As my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) reminds us in a powerful speech every single year, when we get this wrong, we see the human cost.

First, we must see every victim in their own right—they are not a generic group of people. That is why we need to go further in protecting women who otherwise would find their immigration status a barrier to seeking help. It is also why we must recognise disabled women and ensure that our law works for them. We must look at the concept of what a personal relationship is. I look at the work that Stay Safe East has done on that; it makes a powerful case.

If we are to protect every woman and see her in her own right as a victim, we must also ensure that we protect every woman where she is a victim. I am very moved by the words of Claire Throssell, who talked about the tremendous strength of her sons, Jack and Paul, and the horrific experience they had in the family courts. As Claire has said:

“No parent should have to hold their children in their arms as they die knowing it’s at the hands of the other parent, someone who should love and cherish them.”

We need to go further in protecting people from unsafe contact, because we see in Claire’s case the damage that is done when that does not happen.

We need to push for the stalkers register that we were promised many years ago. There are too many women—Alice Ruggles, Jane Clough and many more—whom we have to honour, and Paladin is doing work in that area. We must also ensure that housing does not become a barrier to a victim of domestic abuse getting help. I stand with SafeLives and Barnardo’s in calling for an amendment to the Bill to ensure that there is a statutory duty on local authorities.

In my final minute, I want to flag the importance of us being a leader, not a follower, when it comes to tackling domestic abuse internationally. It is extremely concerning that although the UK, as a member of the Council of Europe, signed the Istanbul convention in 2014, we are one of the few countries that has not yet ratified it. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) pointed out, that means that there are challenges in how we treat women from minority communities, particularly migrants.

Ratification of the convention is also about our recognition that this is a gendered crime. Through the Bill, I hope that we can make progress on something that the Law Commission is looking at: recognising the misogyny behind crimes against women, and looking at misogyny as a hate crime. In particular, I look at the evidence from Nottinghamshire, where treating violence as a misogynistic act has transformed the way in which the police and other services are able to deal with it.

I hope that Ministers look forward to debating not only how we protect migrant women and disabled women, but the need to call this out for what it is: a hatred of women. It is about not creating a new crime, but recognising the importance and value of identifying it as such within our criminal justice system. When we hear the words of victims such as Claire or the families of Jane Clough and Alice Ruggles, we know that we cannot afford to lose this precious legislative moment. We have fought for it for so long. All of us across the House want the Bill to be the best it can be, so I look forward to working with Ministers to make sure that it is.

[Mr Deputy Speaker (Mr Nigel Evans)]

Thank you, Stella. I can reassure you that your speech was heard clearly and in its entirety in the Chamber.

Domestic Abuse Bill

Stella Creasy Excerpts

Wednesday 2nd October 2019 Commons Chamber

[Robert Buckland]

On the hon. Gentleman’s last point, the business managers will have heard him loud and clear. I am keen to ensure that the Bill maintains its focus on domestic abuse. I do not pretend that we can somehow hermetically seal the issue off from other aspects of criminal behaviour and abuse, such as stalking, but I think that the best place for stalking legislation would be in a discrete piece of work. I draw his attention to the work that we did in England and Wales. I was part of the all-party parliamentary group on stalking and harassment, which campaigned and worked at pace to get stalking criminalised in England and Wales. I will give him encouragement, but I really want to ensure that this Bill is focused.

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

I have just returned from the Council of Europe, where members across parties, especially in the Socialist Group, expressed horror that it has taken seven years and counting for the UK to ratify the Istanbul convention. One of the critical points in ratifying the convention is the treatment of women in Northern Ireland and the fact that they do not have the protections that the Secretary of State has just suggested should not be in the Bill. The Government gave a pledge and told the Council of Europe that the Bill was about ratifying the Istanbul convention, and there is a motion of recommendation about the convention in the UK right now at the Council of Europe. Can he give an assurance that he will not leave the women of Northern Ireland out of the Istanbul convention, let alone the migrant women in this country who also need us to put the legislation together?

[Robert Buckland]

The hon. Lady makes an important point about the Istanbul convention, and of course we passed domestic legislation about that. I want to make sure that every aspect of the convention is underpinned in domestic law throughout the length and breadth of the United Kingdom. I am simply saying, as a legislator and someone who wants to make sure that we get the Bill in the best possible position, that we need to make sure we get the issues in the right vehicle. If it is the will of the House that the Bill is the right vehicle, that will of course be respected, but I think I am entitled to make that point about what I regard as the real focus of the Bill. I speak as someone who has actively and enthusiastically supported the criminalisation of stalking— as has she—for many years.

--- Later in debate ---

[Carolyn Harris]

Without question, the victim is central and we need to look closely at that.

We also need to see changes in relation to migrant women and the economic abuse that they experience due to having no recourse to public funds—a situation that often leaves them in violent and dangerous relationships, as they simply cannot afford to leave. The Bill must change the legislation to ensure that all migrant victims are eligible to apply for indefinite leave to remain irrespective of the visa that they are residing here on. The law must allow them to apply immediately for access to public funds under the destitute domestic violence concession and permit up to six months for their application for indefinite leave to remain to be submitted under the domestic violence rule.

[Stella Creasy]

My hon. Friend is making an incredibly important point. Is it not also worth putting on record that, if we wish to ratify the Istanbul convention, we have to make sure that this legislation covers the rights of migrant women, as well as the rights of women in Northern Ireland, and has a gendered definition of domestic violence? Without those, we will not be able to say that we have ratified and, after seven years, I know that the Council of Europe will want to know why we have not.

[Carolyn Harris]

That was a very powerful point from a well-known champion on such issues who has now taken the opportunity to put those sentiments on record.

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.

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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.

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[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?

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 (First sitting)

Stella Creasy Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Mary Robinson (Cheadle) (Con)]

Q It was really disturbing when we discussed this and you relayed how it had happened to you. Part of this was the pressure of people around you. It was quite a physical event for you. There seem to be two elements to this: the upskirting and the taking of the photograph to humiliate you and the passing around. How do you view those two incidents in terms of the humiliation aspect, or is there no difference at all?

Gina Martin: It is very difficult. I think the feeling of harassment was compounded. I have not separated out in my mind which I think was worse, because it was just a very horrible blurry event. I just hated all of it, if I am being totally honest. That is my very human response to it.

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

Q Hello Gina. One of the debates in relation to the Bill is about the concept of motivation, about whether we need to set out in law reasons why people do what you are talking about and, therefore, why that is wrong. We are debating whether we need to do that or simply to say that this, in and of itself, is wrong whether a person does it because they want to humiliate someone, because they find the pictures sexually exciting or because they will make money out of them. What is your view on that?

Gina Martin: That is a question that is more for a lawyer. I am not a lawyer, and I am not going to sit here and talk about the legislation in detail. One thing you touched on there was monetary gain. I would like to say categorically that of course I would like to see that we could prosecute at some point the paparazzi and photographers who do this. I am of the understanding that that needs to be done very, very carefully, with a lot of detail, to ensure that there are no unexpected consequences. I do not necessarily think that we should delay this process to look at that specifically—that is for another time.

Also, having worked specifically in the media for a very long time, I am very aware that if one celebrity decided to prosecute and raised charges using outraging public decency against paparazzi that would change very quickly. There is a big amount of education that needs to go on in that area. That is my feeling on that.

--- Later in debate ---

[The Chair]

We are doing commendably well, but we are going to run out of time, so I will call Stella Creasy and then the Minister.

[Stella Creasy]

Q Gina, you just talked about the difference between someone who does this once and someone who systematically seeks out women to take pictures in this way. Mary was talking about how we might capture intent. What is your feeling about saying that if someone is clearly showing a pattern of hostility towards women that makes them think they have the right to do this, it should be a factor in the kind of sentence they get once they have been found guilty, because there are different sentences in the legislation?

Gina Martin: In terms of?

[Stella Creasy]

If they are shown to be hostile towards women because they have gone out and done this several times. Perhaps they have made websites of all the pictures they have taken and they have shown a different approach—a sense of entitlement—to being able to take pictures of women in this way. Do you think that level of behaviour should be reflected in and have an impact on the sentence they get, if they have been found to have taken the pictures and breached the conditions?

Gina Martin: Yes, I feel like this constantly repeated behaviour, the sinister intention and the power play have to be taken into account, and their behaviour would be taken into account by prosecutors.

[Stella Creasy]

Q Prosecutors would not be able to do that at the moment, unlike if someone had sought out people from an ethnic minority to do this to. Prosecutors could take that into account, but if the offender were to seek out women explicitly, prosecutors would not be able to take that into account, particularly as opposed to anything else right now under the law. Do you think that should change for something like this?

Gina Martin: It is difficult for me to say without knowing the process. I would not want to sit here and give advice, because I do not know the process of prosecuting this. I have been leading the campaign as a victim, so it would be difficult for me to give that advice. If Ryan was here, I am sure he would be happy to talk to you about that and to give you a more comprehensive answer. It would be remiss of me to give you an answer on that.

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

Q Gina, thank you very much for all the work you have done campaigning for this. You have done a tremendous campaign. I just want to pick up on something that Liz Saville Roberts asked you. She asked whether it was important to be thorough, rather than quick. The narrow area we have identified in the Bill follows the Scottish legislation, which has been in place for some time. The motivations we have identified in the Bill take a precedent that exists and that the Crown Prosecution Service prosecutes under in other sexual offences and other offences. There is thorough ground to put forward a law on this narrow area but, in other areas, if we wanted to expand the Bill, that would be unprecedented and would warrant further consideration.

Gina Martin: Yes, that is where I stand currently.

--- Later in debate ---

[Julian Knight]

Q Just to be clear, you are saying, effectively, that we should not go outside the scope of this offence to bring in other offences and, therefore, perhaps detract from this particular offence, so that it does not become a catch-all for all forms of nefarious activity?

Assistant Commissioner Hewitt: Yes. I introduced that concept of image-based sexual abuse, but that was just to make the point that there is a range of ways that people can offend using digital imagery. It was not to suggest that we ought to make this any less clear than it would appear to be. The one exception that I might make around that is whether there is a potential to add an element around distribution or sharing of that image, because, at the moment, the legislation does not go to that stage. As I said, there is some evidence that there are places where people go to upload these images. I think that is taking that offence to a further stage and is adding to the backdrop. That may be worth considering, but we should have absolute clarity about the core elements of that offence.

[Stella Creasy]

Q I have two issues I would like to raise with you. I am conscious of time. First, you have made a powerful case for the impact on victims of these kinds of offence. Do you think that impact is any less if it is a picture of somebody’s breasts, rather than their buttocks or genitals?

Assistant Commissioner Hewitt: I am not sure that I can answer that question, but I understand the point you are making. It feels to me that the intrusion of going in and under a garment—the skirt; I know you don’t have to physically—takes it to a slightly further stage than an image of somebody that is taken clearly outside their clothing. You are in the same territory, but I do think there is something particularly invasive about somebody being able to take an image up a skirt. But I understand the point you are making.

[Stella Creasy]

Q The concept of consent is secondary in that instance to the location—that is what we are trying to understand.

Assistant Commissioner Hewitt: If you have not given consent to somebody to take a photograph that is sexualised, you have not given consent to them. I accept that point entirely. That takes us to the last question about clarity. To my knowledge, the phenomenon we are facing, particularly at the moment, is this phenomenon of upskirting, and it would be really good for us to be able to send a very clear message. I get that someone taking a photograph of someone’s breasts or backside from other angles is offensive, but I am not sure—I think it might confuse.

[Stella Creasy]

Q Secondly, the National Police Chiefs’ Council is meeting on Thursday, when we will be considering this Bill, to talk about the roll-out of the policy from Nottingham, where they have put misogyny on the same level as racial and religious hate crime. They have said that there is a case for recognising this as an aggravating factor. When it comes to an offence such as this, if it is proven that somebody has, for example, created a website where they have uploaded images and who seems to be systematically following women around to take these kinds of picture, should that be taken into consideration in the sentencing, in the way that could happen now with somebody who was racially or religiously motivated, so that the court could take into account the misogyny behind this?

Assistant Commissioner Hewitt: I am not sure the circumstances you describe are about misogyny. For me, that is about somebody who is a more serious predatory sexual offender. I see this in sexual offending terms. I will be there on Thursday as part of the debate you describe.

[Stella Creasy]

Q Will you be supporting the roll-out of Nottingham?

Assistant Commissioner Hewitt: That is for the debate on Thursday. I do not want to pre-empt that debate. For me, this is about sexual offending. If it is proven that an individual has done this repeatedly, or has followed certain people, or is putting himself in certain places to do that, that is an aggravating factor that I would expect the prosecution—and ultimately, if they were convicted, the sentencing—to take into consideration, as opposed to the person where it appears to be a one-off issue.

[Stella Creasy]

Q So do you think there is a case for an aggravating factor? The question is, what would it be under? If they had not picked out a particular type of woman to do this, but it was women, as the law is currently drafted we would not be able to recognise that in the sentencing.

Assistant Commissioner Hewitt: But this will be women, in the way the Bill is drafted at the moment, will it not?

[Stella Creasy]

Q But, for example, if somebody had targeted women in this way, but targeted every type of woman—there was no particular pattern, as opposed to somebody simply targeting women systematically to do this—and was clearly showing hostility to them as a category of person because they felt an entitlement to be able to do this, is that something the courts could look at?

Assistant Commissioner Hewitt: That sounds fairly complex to me and you would have to ask the courts to answer that question. I see where you are going. I think I would keep this more purely in the realm of sexual offending and the pattern of behaviour of that person as a sexual offender. Whether that is about an approach in a relationship with women is a different thing.

[Stella Creasy]

Q So the Dapper Laughs person who gets their jollies from putting up pictures of women in compromising positions but does not take sexual gratification from them is not a particular category of person that you think we should be challenging?

Assistant Commissioner Hewitt: I do think we should be tackling them; it is just whether this is the right legislation to tackle them with. I think the courts will have to consider that.

Parole Board: Transparency and Victim Support

Stella Creasy Excerpts

Friday 19th January 2018 Commons Chamber

[Mr Gauke]

Yes, my hon. Friend makes a very good point. As a society, the direction that we have gone in more generally has been towards greater transparency. As Professor Nick Hardwick was one of the first to make that point, there is clearly a case in this context for the Parole Board as well.

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

Although all of us understand the desire not to prejudice any possible action by the victims, a letter from the Secretary of State’s predecessor on 8 January—it is a public letter open to MPs—states that the victims were not contacted until October, having last had contact in 2009. He knows the concern that it is not just about updating victims, but about involving them in Parole Board decisions. Can he give an assurance that the involvement and participation of victims will be looked at and that he will publish the date in October when contact was made with the Warboys’s victims so that we can understand the process used?

[Mr Gauke]

With regard to the facts of a particular case, that is exactly what Dame Glenys Stacey will be investigating. I have no doubt that she will make public her conclusions. It is very important that victims are involved. I know that in this case they are involved, as I said earlier, in making representations in terms of licensing conditions. It is right that due and appropriate weight is given to those representations when it comes to determining the licensing conditions.

Parole Board and Victim Support

Stella Creasy Excerpts

Tuesday 9th January 2018 Commons Chamber

[Mr Gauke]

Of course, the IPP cases are essentially historic in the sense that those sentences no longer apply; but while approximately 3,000 IPP prisoners remain in jail, it is a question of testing whether there is a risk to the public once the tariff has been met, as my right hon. Friend sets out. Of course, a different system applies to those who do not fall within the IPP test.

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

I welcome the Lord Chancellor to his new job. He may be aware that on Friday, a cross-party group of 58 MPs wrote to his predecessor, to express our concerns not so much about transparency in decision making but about the right of victims to be heard by the Parole Board and for their information to influence decisions. His successor wrote back to us, stating that the victim support people had tried to make contact in October, for a hearing in November, with people with whom they had not had contact since 2009.

Will the Lord Chancellor, in his review, look explicitly, not at the transparency of how decisions were made, but at how victims’ voices were heard as part of that process? If he is not satisfied, as it seems that many of these victims were not told how they could have their say, will he use his powers to instigate a judicial review of the decision?

[Mr Gauke]

The hon. Lady raises an important point about victims’ voice being heard throughout the process. In the review, I want to focus on the areas that I have particularly set out, but it is important to look at the whole process of victim support and ensuring that the voice of victims is heard, so that it works for victims in the way that we all want it to work.

Prison Officers Association: Protest Action

Stella Creasy Excerpts

Tuesday 15th November 2016 Commons Chamber

[Elizabeth Truss]

I completely agree with my hon. Friend that crimes committed in prison against prison officers need to be treated extremely seriously, and I am working closely with the Attorney General and the Home Secretary to make sure that that is followed through.

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

We all welcome the Secretary of State’s willingness to tackle violence in prisons by funding additional officers, but she must be honest with the House about how this does not extend to those people working in our prisons in the private sector. Prisoners do not choose whether they end up in a public or private establishment, and those who work in the private sector, including those from my Community union, perform a public service in guarding those prisoners, whether the contract is directly with the Government or not. What is she going to do to help ensure the safety of all in our prisons and give them the respect they deserve?

[Elizabeth Truss]

I thank the hon. Lady for her comments and I can confirm that those increases will also apply in the private sector as well as in the public sector.

Registration of Births

Stella Creasy Excerpts

Wednesday 23rd March 2016 Westminster Hall

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

I beg to move,

That this House has considered the registration of births of children of deceased people.

I am conscious that our debate may be interrupted at any moment by the sound of the Division Bell. I will start, but I presume that the sitting will be suspended for 15 minutes.

I called for this debate following a number of cases that had come to my attention. I want to make a simple request to the Government about freedom. Since I became an MP in 2010, we have had many debates about equality, and many of us were proud to support legislation to enable same-sex marriage, but many equality battles remain, and this is one. It is about bringing legislation on the registration of births into the 21st century.

--- Later in debate ---

On resuming—

[Stella Creasy]

As I was saying before we were interrupted by high-speed rail, this debate is about equality and freedom, because the law on equality is ultimately about the freedom for people to live their life as they wish. The freedoms we are talking about today are freedoms held in one of the most tragic circumstances possible: a mother losing a loved one just as she is bringing a new life into this world. Today I will talk about the way in which, perhaps inadvertently, our legislation discriminates against people in those circumstances.

[Mrs Madeleine Moon (Bridgend) (Lab)]

The freedom that my hon. Friend is referring to exists in Germany and Switzerland, both of which have the sensible rule that parental information is taken when the baby is first introduced to the midwife and maternity system and the father acknowledges paternity. The legal situation is clarified at that point, rather than at the point of the baby’s birth.

[Stella Creasy]

My hon. Friend, like me, has such cases in her constituency, hence her concern to get the law right. The legislation does not make sense in the 21st century, and our concern is that it inadvertently discriminates against women. It makes a value judgment about the mothers in question and therefore enshrines an outdated attitude towards women in the process.

I have some examples, and I am grateful that one of the people tragically affected is here with us today. My constituent, Joana, is a young mum from Walthamstow, and she already had one child with her partner, David, when he tragically had a stroke shortly before the birth of their second child, Eira. Having his role in Eira’s life recorded was therefore an important part of the grieving process for the family, and doubly important for Eira because it gives her the same rights to David as her sister. Joana has described to me the dehumanising process of trying to get David’s role in Eira’s life recorded on the birth certificate. She described turning up at the register office only to find that the registrar had no idea what to do, and she then found out that she had to go to court to prove that David was the father. She had been in a long-term relationship with this man. She shared a mortgage with him, and he had been at the National Childbirth Trust classes. He had been an integral part of the preparations for the birth of their second child. They were clearly in a committed relationship, but alas, the law includes no ability to recognise that and does not give the registrar the ability to record David’s part in Eira’s life, because of the simple fact that Joana and David were not married.

Joana is not alone. Penny’s partner Nathan sadly died two weeks after their son was born. Their son was conceived using IVF, so Nathan was clearly the father. Again, purely because Nathan and Penny had chosen not to marry, they were not able to record Nathan’s role in their son’s life on the birth certificate. Penny told us:

“Babies don’t come from wedding rings.”

There is also Rebecca, who already had a child with Mark before he tragically died in a paragliding accident when Rebecca was just 17 weeks pregnant.

All three women faced the same scenario in which their word, and even the basic evidence they could provide for the long-standing, committed relationships they were in with the fathers of their children, was not enough, so they had to go to court. They faced a court fee of £365 and possible further fees for DNA tests to prove that their partner was indeed the father. In fact, in Joana’s case, David’s father had to come to court. They had to take DNA not just from Eira but from her sister and from a family member to prove that most basic relationship, which was obvious to the outside world.

The situation was very different for Kate, who also lost her partner in tragic circumstances shortly before the birth of their son. Three weeks before he passed away they married in a hospital intensive care unit. The £27 licence meant that not only was she able to register her child’s father with no further questions asked—even though, just as in the cases of Joana, Penny and Rebecca, he was not present at the registration process—but she was entitled to a bereavement allowance of £2,000 and an ongoing widowed parent’s allowance of £510 a month.

There is a simple question at the heart of this matter. I wanted the debate because as a society we have not yet considered these issues, even though they affect how people live today. In securing the debate, the first thing I wanted to do was put this matter on the Minister’s list of things to resolve. The situation still exists only because nobody has really looked at it in the 21st century. Why do we treat Kate differently from Penny, Rebecca and Joana?

I pay tribute to the organisation Widowed & Young, which has been helping equally all four of the women I mentioned. It recognised the iniquities in the existing system. When those women’s partners were alive, all four couples were treated equally with regard to taxation. It is only in death that we see the inequality in people’s treatment. By having that marriage licence, Kate did not have to go through the indignity of having to try to prove her child’s paternity in the way the other three did.

The Births and Deaths Registration Act 1953 is truly from another time. I say for the avoidance of doubt that I think everyone understands that because legal rights come with parenthood, there must be a process for registering children. That process must withstand scrutiny and nobody, either male or female, should be registered if they are not a parent. But the Act is designed to protect fathers from having an illegitimate child registered. I would caution that the term “illegitimate” in itself speaks volumes of the 1950s, not the 21st century in which we live.

The existing law requires the courts to verify parentage when the parents are not married, as if marriage in and of itself verifies the truthfulness of what a woman says. There is, though, already a process in place for a birth certificate to be amended to add a name. We already recognise that it is right for a registrar to have the discretion to amend a certificate in certain circumstances—they can use their professional judgment and respond to the person in front of them—without requiring people to go to court, which can cost families thousands of pounds at the most tragic of times.

We do not, though, have the ability to correct an absence. There is no way to allow a registrar to look at the evidence that Joana could have so easily presented, at the time, of the sincere and committed relationship she was in with David, and to act accordingly. At the most difficult and sensitive time for a family, the law stands firm. It does not see the lives that people had, but simply makes the judgment that they were not married. We must change that. Turning up with a father is in itself no guarantee that he is the father, just as turning up without him does not mean that he can be verified by DNA testing alone.

Will the Minister consider ending the inequality and making sure that this part of the law does not judge those who choose not to marry, just as we seek to support those who do choose to marry? In not giving registrars the same power to correct an absence as to make an addition, we persist with the inequality of saying that some women will lie and that marriage is what makes them truthful. Why treat women who choose not to marry as somehow untrustworthy? Why not enable registrars to seek evidence, act and use their professional judgment? We are seeking a small change in the law, but it would be a big injustice for the families if we did not drag the legislation into the 21st century.

I appreciate that this might be the first time the Minister has considered the matter. As my hon. Friend the Member for Bridgend (Mrs Moon) pointed out, there are different processes in place in other countries. We want the Government to commit to looking at how they can make a change happen, and to recognise that this is an injustice that needs resolution. It is now too late for Joana—she has managed to record David’s role in Eira’s life through other means—but we know that many more families out there are suffering the same experience and hope the Government will act accordingly.

[The Parliamentary Under-Secretary of State for Women and Equalities and Family Justice (Caroline Dinenage)]

It is a great pleasure to serve under your chairmanship, Mr Hollobone. I congratulate the hon. Member for Walthamstow (Stella Creasy) on securing this important debate on such a vital issue.

We are here because of the tragic death of the hon. Lady’s constituent, David. At the outset, I pay tribute to him, to his partner, Joana, and to all the other women she mentioned—Penny, Rebecca and Kate. Joana and the others have shown incredible bravery in utterly devastating circumstances. I was deeply moved when I read Joana’s account of her family’s experience. I acknowledge the courage and determination she has shown by speaking out publicly on this issue. It cannot have been easy for her.

The hon. Lady makes a compelling case for addressing the issue at hand, which is the lengthy and complex process that Joana had to undertake to put the name of her baby’s father on her birth certificate after he tragically and unexpectedly died before the child was born. Of course, nothing can undo the devastation of these terrible circumstances, but recognising a deceased father on a birth certificate is an important step in honouring their memory.

I understand utterly the sense of frustration when the system appears to make things very difficult. It has been very valuable to listen to the points that the hon. Lady has made today, all of which I have taken on board. I hope that I can explain how the law operates and why, and how the law, the courts and the registration process provide for the recognition of fathers in such tragic circumstances, but I will also consider all the suggestions that the hon. Lady has made.

Moving away from the specific details of this case, I will lay out the general position on parentage. The two key principles in English law in this regard are the “presumption of legitimacy”, which assumes that a child born to a married woman is the child of her husband, and genetic fatherhood, whereby evidence can be used where necessary to prove paternity.

The law presumes that a married man is the father of his wife’s child, so his registration as the child’s father is automatic. The law does not give the same recognition to unmarried fathers, because currently there is not any legal framework that presumes their paternity. In ordinary circumstances, an unmarried father will consent to his registration as the father of the child and usually he will attend the registration of the child’s birth with the mother, but the registrar can also recognise the father’s entitlement to be registered if he has a parental responsibility agreement, a parental responsibility order or another suitable form of court order. However, where that is not possible, in tragic cases such as that of Joana, the law provides an alternative way for a deceased father to be recognised as a child’s father, and then to be recognised through the birth registration process.

The Family Law Act 1986 allows a court to make a declaration of parentage, and anyone can apply for a declaration to the High Court or the family court, and the final order of the court will be a declaration that a person named in the application was the parent of the child. The Registrar General is then responsible for authorising the re-registration of the birth to include the name of the deceased father, under the Births and Deaths Registration Act 1953. This process should not be lengthy or expensive, but unfortunately that does not appear to have been the experience of the hon. Lady’s constituent.

The hon. Lady rightly points out the necessary provision to prevent birth registration from naming someone falsely as a child’s father, because obviously a birth certificate could potentially be used to support a false claim for something such as nationality or the right to inherit property. Consequently, it is really important that a birth certificate generates a high level of confidence in the information that it contains.

However, a key intention of the provisions for family proceedings was to try to make the process simpler, so that people would not need legal representation, which should keep the costs down. The application form for a declaration of parentage explains all the information that is required and contains directions that enable the application to be completed successfully. However, in light of the experiences I have heard about today, I am very happy to look at the information available to people registering births and to consult with the General Register Office to see whether this process needs to be improved to make the position clearer for applicants, especially those unfortunate enough to have experienced the death of a partner shortly before the birth of a child.

In addition, I know that one of my ministerial colleagues in the Home Office is already looking at the registration process for marriage and I am more than happy to have a conversation with him to request that the registration of births is also covered. I will particularly ask that international examples are looked at to see whether they can be taken into consideration.

[Stella Creasy]

I thank the Minister for her comments. Nobody is suggesting that we do not need a robust process for registering births. However, what troubles me particularly in this instance is the difference between a registrar taking on that role and seeking a court intervention. She and I may differ on whether the cost of the court fees is excessive, but the principle that the court has to be involved at all is the challenge, especially when we allow registrars to amend a birth certificate. It is registering a name in the first place that is the challenge when the father is deceased and the parents are not married.

Will the Minister commit to examining why we presume a registrar can exercise their professional judgment to amend a registration when perhaps even married people might not have given the whole truth at the point of registering a birth, but, when it comes to adding the name of a person who cannot be there for a very reasonable reason—because they have passed away—we deny the registrar’s professional expertise? The simple resolution would be to extend the use of that professional expertise to both instances, rather than saying that only the courts can add a name, but that a registrar can amend a name.

[Caroline Dinenage]

Yes, as I have said, I will consider that, and also discuss it with my counterpart in the Home Office, who is already considering registrations of marriages, to see whether that scrutiny can be extended to registration of births as well, particularly in cases of this kind. I would like, in conclusion, to express my sympathy to Joana, who had such a terrible experience following the loss of her partner, and to her daughters, on the loss of their dad.

[Stella Creasy]

For clarity, may we have a timetable for the scrutiny of marriage licences, and for consideration of extending the registrars’ powers to add a name? Now that we have opened up the matter in debate, we know that several families are in the same position, and they would welcome clarity about when they will get answers.

Oral Answers to Questions

Stella Creasy Excerpts

Tuesday 3rd February 2015 Commons Chamber

[Andrew Selous]

The hon. Lady is absolutely right that prison officers are front-line public servants who keep us safe, and I have told her how seriously I take this issue. I read the reports on a daily basis, and I can assure her that they affect me as much as they do her and everyone else in the House. We are taking action in three areas: a wider range of punishments to crack down on the use of new psychoactive substances; the new protocol—it has never happened before—between the CPS and police forces to ensure that prisoners who attack staff or other prisoners spend longer behind bars; and an increased use of body-worn cameras. All that will help.

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

11. What steps he is taking to support victims of crime.

[The Minister for Policing, Criminal Justice and Victims (Mike Penning)]

We published “Our Commitment to Victims” in September 2014. In addition, I chair the victims panel, and we will bring forward a victims law. On Thursday, I launched TrackMyCrime, which, for the first time, will enable victims to track their crime as it passes through the criminal justice system. Across the House, we should congratulate Avon and Somerset constabulary on piloting and bringing forward this initiative.

[Stella Creasy]

In November, the Minister wrote to me to say that this Government had decided to be “silent” on the rights of murder victims abroad, so that they did not have to do anything to help the families secure justice. The Minister will try to talk about the new directives for victims, but why have the Government been silent about the rights of the British taxpayer Tyrell Matthews-Burton, and yet have spoken up for others?

[Mike Penning]

I have met the hon. Lady, and I know that she is passionate—and quite rightly so—in speaking up for her constituents and victims. As she knows, it is about the definition within the law as it was, and it is no good attacking this Government, because it was exactly the same for the 13 years under the previous Government. We are making the changes.