The speech made by Stella Creasy, the Labour MP for Walthamstow, in the House of Commons on 24 March 2023.
I rise as the person who tabled the original amendments in Committee that prefigured new clause 1, to recognise this as the best of Parliament. When we come together to write legislation we believe will make a positive and constructive difference to people, listening to each other’s concerns and recognising the positive pare that scrutiny can play in the process, it can bear fruits that we can all support. I welcome and support new clause 1 as a recognition that there was a concern and an issue with the concept of reasonableness being at the heart of public order offences. Let me clarify what I mean by that.
Let me clarify what I mean by that: this legislation is about harassment, and other forms of harassment legislation have always had within them a test that someone’s behaviour cannot be considered reasonable if general opinion would be that their behaviour was unreasonable. In layman’s terms, when it comes to the harassment that we are talking about, if someone were being followed down the street and shouted at—particularly about their sex or presumed sex—even if that person were to claim it was reasonable, a magistrate should be able to say that it was patently not. The person responsible should not be able to evade prosecution under this legislation. However, this Bill was originally based on public order offences legislation, which does not include that distinction about whether somebody ought to know that their behaviour was unreasonable.
It is very welcome that the Government have listened and agreed to put out guidance to consider that point. I hope that setting out what I believe that guidance should cover will be a helpful guide to the Government, and perhaps will answer the genuine queries from the hon. Member for Christchurch (Sir Christopher Chope) about whether there can be involvement in it. For many of us, getting this issue right goes to the heart of how this legislation will deliver the effective freedom that we hope for particularly, but not exclusively, for women, as it is women who are overwhelmingly reporting the kind of incidents that we are talking about in this legislation.
One of the challenges will be the initial decision as to whether someone has committed an offence. Many of us are extremely used to the idea that the challenge is our reaction to someone’s provocation, rather than the provocation. I hope that new clause 1 will recognise that, consistent with other forms of harassment legislation, a defendant arguing that their behaviour is reasonable should not be a reason not to proceed with a charge. I want to be clear about that, because I understand why people would be concerned. No one is suggesting that the reasonableness defence should not remain; we are arguing that it should for the courts or the magistrates to decide whether the behaviour was reasonable, rather than the defendant. In setting out the guidance, I hope that the Government will give weight to the idea that the presentation of a reasonableness defence, which is quite frequent in harassment cases but not necessarily in public order offences, should not deter the CPS or the police from seeking to proceed with a prosecution. In that sense, it would be consistent with the guidance on the Serious Organised Crime and Police Act 2005 or the Protection from Harassment Act 1997.
In reference to some of the amendments tabled, agree with the right hon. Member for Tunbridge Wells (Greg Clark) about the importance of consistency in the law. I add my support to his argument about retaining the provision on presumed sex within the Bill. The most important thing about this legislation is that it turns the lens from the behaviour of victims—women in particular, because although this legislation covers both men and women, and male and female perpetrators, women will particularly benefit from our clarifying that street-based harassment is unacceptable and is illegal already, and therefore carries a higher penalty if it is targeted in this way. Too often, the victim’s behaviour has been called into question in decisions whether to prosecute. It important that the legislation is written in such a way to turn our attention back to the perpetrator. Were we to have loopholes, whether around reasonableness or the status of the victim, we could inadvertently undermine the capacity of the police and the CPS to secure that outcome.
I recognise the attempts from the hon. Member for Christchurch to test the legislation. If he read the scrutiny of the legislation in Committee, he would appreciate that, because that is where new clause 1 has derived from. I hope he will understand that many of us feel that the changes he suggests would undermine the Bill, because it would not be as clear that our sole concern is the people who harass, intimidate and abuse other people in public because they are focused on the sex or presumed sex of the victim. The important message that we want to send by passing this legislation is that the existing crimes should not be diminished, ignored and seen as part of everyday life, and that we should address them.
That is what I wanted to say, as the person who originally drafted the amendment that has led to new clause 1. I also recognise the cross-party working to get this legislation right. I hope that those who had concerns about new clause 1 or other parts of the legislation will see the benefit of having had these discussions, and that the Bill will benefit many of our constituents as a result.
