My Lords, my Amendment 114G amends my noble friend Lady Newlove’s amendment and removes “or gender” from subsection (3) of her proposed new clause. When my noble friend tabled a different misogyny amendment in Committee, she constructed it using the formula “sex or gender”, and I argued against that formulation.
My noble friend’s new clause is headed “Offences motivated by hostility towards the sex or gender of the victim”, but the text of the clause is puzzling. Subsection (1) defines “relevant crime”, for the purposes of the new clause, in terms of
“hostility or prejudice based on sex”—
not on sex or gender. Of course, because it is the perception, that would also cover the perception of trans people. Sex has a definition, which picks up on that of the Equality Act 2010. When we get to subsection (2), which is about the recording of relevant crimes, that, too, because it makes no reference to gender, would clearly apply only to relevant crimes expressed in terms of sex, as set out in subsection (1).
Those of us who received the briefing this afternoon from the honourable Stella Creasy MP will have noted that it claims that this amendment refers throughout to sex and gender, but it quite clearly does not. Subsection (1), which governs subsection (2), refers only to prejudice or hostility based on sex. The problem is when we get to subsection (3), which is where my amendment bites. It states:
“A court considering the seriousness of an offence arising from a relevant crime”—
remember that a relevant crime is expressed in terms of hostility or prejudice based on sex—
“must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor”.
I really do not understand how that is supposed to work, and I do not think that “or gender” can fit with the definition of “relevant crime”, as it has been defined wholly in relation to sex in subsection (1).
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In addition, gender is not defined in the proposed new clause. Sex is defined, in subsection (1), although sex is actually a relatively easy concept, for which most of us could provide a ready definition, but gender is a much more difficult concept. My amendment would remove “or gender” from subsection (3) of the proposed new clause, to make all of it make sense and not have an extraneous “or gender”.
We do not have time today to debate how “gender” is creeping into our language in a way which undermines women and women’s rights. I believe that it would be a mistake to add gender to the hate crime framework. That is because transgender people are already covered by the transgender identity element of existing hate crime law, so the use of “sex or gender” must mean that gender has a wider meaning, but there is no recognised wider meaning for gender—nor, as I pointed out, is one provided in the new clause. Legislating for gender separately from transgender identity, which already exists in hate crime legislation, will open up a Pandora’s box of gender identity which will have repercussions for women. I believe that it is best avoided.
To that extent, I disagree with the Law Commission’s recent report on hate crime, which tends towards adding gender to sex. The Law Commission’s final report is much more nuanced than its earlier report, and I am sure that that is the result of its consultation, to which it had very many responses, but I believe that the Law Commission has still only scratched the surface of the issues that will come in general once we start inserting gender alongside sex in our laws, because of the vagueness of the concept and its capability of meaning so many different things, many of which will undermine the position of women in our protection frameworks.
I do, however, agree with the Law Commission that the case has not been made for extending hate crime law in this area. The Law Commission expressly recommended against the part of Amendment 114F which would make hostility or prejudice an aggravating factor in sentencing. The consultation responses to the Law Commission’s draft report did not support making these changes, even with—or, in some cases, especially because of—the domestic violence and sexual offences carve-outs, which, as my noble friend Lady Newlove explained, have been incorporated in her new clause by virtue of subsection (4). The carve-outs themselves were found, inter alia, to add complexity to how the law worked and to be tokenistic; many other reasons were given by the Law Commission.
The Law Commission would probably approve of the additional recording that is contained in Amendment 114F, because it found that the evidence base supporting a change in the law is currently very thin. In Committee, several noble Lords cited with approval the recording initiative of Nottinghamshire Police, and my noble friend Lady Newlove has referred to it again, but the Law Commission’s report is clear about what has come from that exercise so far and that it is of very low evidential value, for various reasons explained in its report. So we still have a largely evidence-free area in the context of trying to make significant new laws. I am not clear that subsection (2) adds anything to what the Government have already said that they are prepared to do in respect of requiring further reporting by police forces.
When we debated this in Committee, I argued that we should not legislate until we had received the Law Commission’s report, and that we should also allow the Government to respond to that report. Of course, we now have the Law Commission’s very substantial final report, and it clearly recommends that misogyny should not be added to the hate crime laws. It suggests some alternative ways of dealing with the underlying problem. I hope that any noble Lord thinking of voting for my noble friend’s amendment today has had a chance to have a look at the very significant analysis included in the Law Commission’s report on this subject.
We also ought to allow the Government time to respond to the report. It has been out for only five or six weeks, and we cannot realistically expect a response to a very significant report, running to 600 pages, so soon. I look forward to what the Minister has to say about timing when she responds this afternoon. It clearly is important to get the Government’s response, but I do believe that we should wait for it, especially in
the context of the fact that the Law Commission has not recommended that we go down the route proposed in Amendment 114F.
Those who want to make misogyny a hate crime believe that the treatment of women in our society remains a big issue that needs to be dealt with—and so do I. I just do not believe that Amendment 114F is the right solution at the right time. If, however, Amendment 114F is pressed to a Division, I believe it should be amended by my Amendment 114G in order to make it make sense. I beg to move.