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Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents

Volume 829: debated on Wednesday 26 April 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents.

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, I begin by acknowledging that non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech. I am grateful to all those who expressed their views on this topic during the passage of the Police, Crime, Sentencing and Courts Act 2022. The Government fully understand the strength of feeling on this matter, both within this House and among the public more widely, which is precisely why we laid this code before Parliament on 13 March.

Let me first explain that the collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm. In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur. 

This Government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record. This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address.

Free speech is a cornerstone of our democracy. This code addresses concerns that those who express views which some consider offensive but are not against the law are at risk of becoming the subject of a non- crime hate incident report, and that this may result in their personal data being stored on a policing record. It addresses those concerns by introducing new safeguards to ensure that personal data may be included in a non-crime hate incident record only if the event is clearly motivated by intentional hostility and where there is a real risk of escalation causing significant harm or a criminal offence.

To be recorded as a non-crime hate incident or NCHI, the police must judge that any perception of hostility is valid; the complaint must not be irrational, trivial or malicious. This will ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, and not simply because someone is offended. The code also provides detailed guidance on freedom of expression. Clear case studies to illustrate how this fundamental right should be considered in practice by the police are also set out.

We are confident that the content of the code fully reflects the Court of Appeal’s judgment in the case of Harry Miller v College of Policing, which was handed down in December 2021. The court found that the recording of these incidents is lawful but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have mentioned, this is exactly what the code provides. I particularly thank the National Police Chiefs’ Council, the College of Policing and senior police officers, who have engaged with Home Office officials throughout the drafting process to ensure that this code will work from an operational standpoint.

The College of Policing is also currently updating operational guidance for police on the recording of such incidents to ensure this guidance aligns with the new code. The college will also roll out the requisite training for police officers to ensure that the principles within the code are fully understood and embedded within everyday policing practice. This will ensure that the code is applied consistently by forces across England and Wales.

To reiterate, by taking these steps, we are protecting the vital changes that have been implemented by policing since the Stephen Lawrence inquiry. We continue to recognise the need to record intelligence that enables the police to intervene to prevent serious harms and future crimes, and we are determined to support the police in protecting the public. However, we have listened to the concerns raised in relation to the fact that this recording has at times gone too far, and we have acted on them. This code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while still ensuring that vulnerable individuals and communities continue to be safeguarded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. With that, I commend the draft code to the Committee and beg to move.

My Lords, I must begin by acknowledging the role of my noble friend Lord Moylan, who sadly cannot speak in this debate today. My noble friend moved amendments, which I supported, to the then Police, Crime, Sentencing and Courts Bill in the autumn of 2020. We sought to make the Secretary of State responsible for determining five things in particular: first, the basis on which the record of the incident is to be kept; secondly, how those sensitive records are to be kept; thirdly, for how long they are to be kept; fourthly, what provisions there would be for review; and, fifthly, to whom and on what basis the information on them might be disclosed.

I remind the Committee that, until now, there has been no formal basis to ensure a proper system for selecting and recording what is to be logged, what personal data are to be kept, or when, if ever, the matter is to be reviewed. Nor was there any consistent basis as to when the subject would be given the opportunity, if at all, to respond. This code of practice, made pursuant to what is now the Act, is therefore the first such code of practice on this important matter. Having read it with care, I commend it to the Committee and believe we should approve it. It addresses all our core points and it is good to have it on a proper statutory basis.

Looking forward, however, there are a number of things. We must keep the code of practice’s application under review. I understand that the number of reports which are now on record runs well into six figures—a very large number. Remember that the subjects have committed no crime, but in many cases their names have been recorded and remain recorded.

My first point is therefore that it is important that all police forces act promptly, as the code commends, to review all those reports currently on record to ensure that only those which meet the new requirements remain on record and that others are expunged without delay. To that end, I invite the Minister to ask that each police force in England and Wales reports to the department after 12 months from the code coming into force, and in each year thereafter, to state, first, how many extant reports it has reviewed; secondly, how many reports, if any, remain unreviewed; and thirdly, how many new reports it has recorded. This would ensure that all police forces do their job properly. It should not be burdensome, as they have just to enter it as they do each review, and it would provide valuable data for the Home Office and for Parliament.

Secondly, I stress that the Court of Appeal in December 2021 in the case of Miller, to which my noble friend the Minister referred, stressed the undesirable chilling effect of such reports on lawful free speech. It is really important that this code is henceforth applied with common sense and due regard for the right to freedom of expression.

It is particularly important that the police in the field give full weight to the clear provision in the code that it is not every case which justifies recording the name and details of a particular subject, even if the incident is recorded. The police must adhere tightly to the principle that only if it is proportionate and necessary, and if there is a real risk of harm or of a future criminal offence against a person or group with particular characteristics, should a record be made which identifies the person responsible. These criteria are of no less importance when the vital review of the many existing thousands of reports is conducted.

We must continue to be vigilant. It is important that there is a real change in culture on the part of the police, which keeps the balance properly between protecting vulnerable individuals and groups and ensuring that lawful free speech is given proper weight. So far, so good. I commend the code but let us all remember that it is the start, not the finishing line.

My Lords, I too pay tribute to my noble friend Lord Moylan for tabling the amendments that have enabled the Home Secretary to issue this new draft code. I repeat how much he regrets being unable to be with us today.

The need for reform of non-crime hate incidents is clear on many levels, one of which is that an estimated quarter of a million of these have been recorded, which works out at about 70 a day. One can only imagine the amount of non-crime police time this has used up. It is worth remembering that nothing illegal has been done during all this police time. The police have taken it upon themselves to monitor our thoughts and opinions, and if they do not like what they find they record against us. This is no trivial matter, as recordings will show up in DBS checks in perpetuity.

This use of resources was first highlighted when Amber Rudd, then Home Secretary, was reported by an Oxford professor for something she said during the Conservative Party conference. But I suspect what really brought everyone to horrified attention were the NCHIs recorded against four young schoolboys in Wakefield, one of them autistic, for accidentally dropping and scuffing a Koran, even though the head teacher found that there was no evidence of any malicious intent. The publicity around this case also brought to light the fact that NCHIs, unlike actual crimes, will not automatically be deleted from the young boys’ records when they reach the age of 18.

Not content with issuing non-crime hate incidents against the schoolboys, we then saw the chief constable appearing to promote the idea of blasphemy law and the public humiliation of the autistic boy’s mother. This is where we find ourselves when we start to police hurt feelings and not crime. So, while I very much welcome this new draft code of practice, my welcome comes with alarm bells ringing about the College of Policing’s reaction to it. It is worth remembering that the whole programme was an invention of the college in 2014 and that it has resisted every attempt at reform ever since, even spending an estimated £350,000 losing a Court of Appeal case against an ex-policeman who had been anonymously denounced for legally tweeting his opinion. At the end of the case, Mr Justice Knowles compared the police’s action to the Cheka, the Gestapo and the Stasi, and reminded the court:

“We have never lived in an Orwellian society”.

Now we have both the Home Office’s draft code of practice and the College of Policing’s interpretation of it, which raises the obvious question of why they are interpreting it at all. Surely, the intention of the Home Office was for this new code of practice to be adopted by the college as its operational guidance, not interpreted in its own way. This matters because the police act on guidance from the College of Policing and not on instruction from the Home Office.

The Home Office provides clear definitions of what constitutes a hate incident, including the requirement that there must be evidence of hostility and not just a vague and often anonymous impression that there has been some hostility. It also focuses on criminality, emphasising that not all incidents that may be perceived as offensive or hurtful should automatically be recorded. Importantly, it also clarifies how the data should be integrated into UK GDPR. To support all these clarifications, it provides 11 case studies as examples of how the new code would work in practice, predicting, as far as possible, real-life experiences that might be faced by officers. So far, so good. In fact, Stephen Watson, the Chief Constable of Greater Manchester, welcomed the guidance, saying:

“It is not automatically unlawful to say or do things which can be unpleasant, hurtful, distasteful or offensive. This guidance is replete with sensible provisions to safeguard victims of hate crime and better distinguishes between that which should involve the police and that which, in a free country, should emphatically not”.

As I said, so far, so good, but then comes the College of Policing’s interpretation of what the Home Office intended. In the Home Office’s code, these 11 examples recommended that in 63% of cases the police are explicitly advised not to record the hate incidents. In its interpretation, the college provides just eight examples and if their advice is followed, only 12.5% would not be recorded. In other words, we will be going back to the status quo ante if the police adopt the existing college code of practice, part of which has already been declared illegal by the Court of Appeal as it disproportionately interfered with free expression. The conclusion can only be that the college clearly believes that there should be stricter limits on free speech than Parliament has voted for, and so has invented new limits for itself and imposed them on us.

Quite why the College of Policing has become a law unto itself is unclear. Recently, it made headlines when it urged 43 different forces to decolonise their training materials and advised them to introduce gender-neutral facilities and become Stonewall champions to make themselves more attractive to transgender applicants, even though the most recent census showed that only 0.6% of the population is transgender. Meanwhile, the police in England and Wales last year solved just 5% of burglaries. No wonder the public are disillusioned with policing and could easily feel that everything seems to be policed except crime.

In conclusion, we should insist that the College of Policing follows the Home Office code in particular and, beyond that, concentrates far more on preventing and solving actual crime. I also suggest that the time is right for an inquiry into the college’s purpose and effectiveness, but that is for another time.

My Lords, I too commend the draft code of practice. The Home Office team has done an excellent job on it. My concern, like that of my noble friend Lord Strathcarron, is to do with the interpretation of the code of practice by the College of Policing.

To add further to what my noble friend was saying, seven of the eight scenarios in the College of Policing’s new guidance, its authorised professional practice, were found in the old guidance, which the Court of Appeal, in the Miller case, subsequently found to be unconstitutional because it had a chilling effect on freedom of speech. The police will not be schooled in the Home Office guidance once the college’s APP comes out; they will be schooled in the guidance given by the College of Policing. This means that we will be exactly where we were before.

The Home Secretary’s intention could not have been clearer—she wants officers to stop policing our tweets and start policing the streets—but the College of Policing now seems determined to thwart her. I ask the Minister whether the College of Policing is allowed to do this and, if so, what he and the Home Office can do to make it follow the guidance. Will they review the college’s own APP now that it is out and make sure that the college redoes it? Paragraph 11.2 of the Explanatory Memorandum sets this out very clearly:

“As set out in paragraph 6.2, operational guidance (known as APP) relating to the recording and retention of NCHIs is published by the College of Policing. An updated version will be produced when the code is approved by Parliament”.

I assume we are doing that today. It continues:

“This operational guidance will ensure that the principles provided by the NCHI Code are operationalised, thus creating consistency across all polices forces in England and Wales”.

I hope that the College of Policing will be required to do that.

I have a point to add on training. Following a freedom of information request to police forces in England and Wales on how many had conducted training on free speech, 78% of the police forces that responded said that they had done no training on Article 10 of the European Convention on Human Rights or on the free speech protections in our own common law. Conversely, 56% of the responding police forces said that equality, diversity and inclusion training was inextricably embedded in their training.

I absolutely commend this Government’s recruitment of 20,000 new police officers, which was a pledge made by Prime Minister Johnson a number of years ago, but it adds to the training issue. I understand that 38% of police officers have had less than five years of service. Training in freedom of speech is a real issue for the Home Office to address because it is really important that police officers understand how important it is to uphold the foundational values of freedom of expression in the democratic and liberal society in which we live.

My Lords, at the outset, I declare my interests as in the register. I am a member of the British Transport Police Authority but, for the avoidance of doubt, none of my comments is aimed at the British Transport Police, its officers or the authority.

I welcome this draft code of practice which, as we know, was legislated for in the Police, Crime, Sentencing and Courts Act 2022. I too pay tribute to my noble friend Lord Moylan for his single-mindedness and persistence in pursuing this issue.

I was brought up in south-east London. I can absolutely understand the horror as a result of the tragic murder of Stephen Lawrence. The Macpherson inquiry was needed at the time. I sincerely believe that we have made huge progress in the way we treat all our citizens. Although the Metropolitan Police has had its issues recently, we have come a long way since that tragedy in 1993.

It would be remiss of me not to mention the Secondary Legislation Scrutiny Committee’s comments about consultation. It is not unfair to add to them by saying to the Minister that there was some consternation about the lack of consultation with wider stakeholders other than what I might call the police family—in particular, people who are concerned about civil liberties and freedom of speech. This might be something for the Home Office to be cognisant of in future cases of consultation such as this.

I broadly welcome the code and the practical, pragmatic response to alleged hate incidents. In particular, I welcome the focus on common sense and proportionality, which is very important. It is vital that we enshrine the centrality of freedom of speech and expression, which the code does. There is also the important issue of the protection of individuals’ data. The clarification via the new additional threshold test and the need to have the real risk of the escalation of an incident to the threshold of criminality are also important. To come back to what my noble friend Lord Leicester said, the College of Policing needs to be mindful of these areas.

I do not like the term “interpretation”. I do not want to be too previous because I understand that the College of Policing’s consultation on its authorised professional practice document on the recording and retention of non-crime hate incidents has only just closed so it has not yet published a response to it. However, some of the messages seem mixed in terms of the college setting its face against the Home Secretary’s explicit request for it to move away from non-crime hate incidents which have a very low evidential basis. The police are not social justice warriors; they are there to keep the peace. Above all, they should not be partisan because, at the end of the day, all of us—black or white, young or old, north to south—want as British citizens to have strength of belief and faith in the police. The problem with non-crime hate incidents is that, as they have developed over the past few years, they have reduced people’s trust in the police, which can be only to the detriment of society as a whole.

I come back to the point made by my noble friends Lord Leicester and Lord Sandhurst. These are non-statutory guidelines. I can say, quite brusquely, that if the College of Policing does not take on board the comments from the Home Secretary, Ministers, Peers and Members of Parliament we may need to legislate and move it out of the non-statutory field. Otherwise, sand will be thrown in the machine and the cases that we have seen, which have been mentioned—such as the schoolboy in Wakefield, Kellie-Jay Keen being persecuted by Wiltshire Police, and Harry Miller—will continue.

Briefly, it is important that police at all levels understand that they have a duty to comply with Article 10 of the European Convention on Human Rights in respect of freedom of speech. Like other noble Lords, I do not believe that that knowledge is inculcated in the training process or apparent at the operational level. This worries me, because it is a fundamental right. Noble Lords have only to look at the 2021 case of Forstater v CGD Europe, in which Mr Justice Choudhury specifically said that, as public authorities, the police have to maintain neutrality “as between competing beliefs” and should not express

“any judgment as to whether a particular belief is more acceptable than another”.

That is very important.

On EDI training, it worries me that some third parties, such as LGBTQ++ staff networks, are giving training which seems to be at variance with what Ministers wish to happen and that they are unaccountable. The transparency, autonomy, authority and procurement of the training provided by third parties should be looked at again, particularly as a lot of police forces are refusing FoI requests by saying that contractual relationships with third parties are commercially sensitive and therefore confidential.

The Miller case was much needed in exposing the extrajudicial policy of perceived offence, but it still worries me that the cultural paradigm shift that we have seen in the police, which is reflected in the College of Policing’s hate crime operational guidance, is all about the perception of hurt feelings rather than the reality of criminal conduct.

While the NCHI does not create a criminal offence, it can be disclosed in an enhanced criminal records check and therefore has the potential to prevent a person gaining employment. I am a good example—not that I have committed any criminal offences, but I was a special adviser and therefore had to go for enhanced vetting. If I had been the subject of an accusation which resulted in a non-crime hate incident, that could have prevented me becoming a government special adviser.

Finally, this code is overdue and extremely welcome. I very much hope that, for its own good and the good of policing and our country, the College of Policing follows this strong and welcome lead.

My Lords, I certainly do not want to oppose the adoption of this code but, as the Minister said, it is important that we look at it in a proportionate way, because it is important that these statistics are available to the police and to ensure that we have good communal relations. At the time of the terrorist attacks in Manchester, London and elsewhere it was extremely important that these statistics were available. I would not want—I am sure that noble Lords would not either—a message to go out today that this is to scrap the process of looking at non-crime hate incidents. It is important that we build up a picture and that we say, as my noble friend Lord Jackson just did in relation to Stephen Lawrence and the Macpherson inquiry, that it is recognised how important this is as the basis for acting. There is broad agreement across the country about that, and among police forces.

I do not want to have a pop at the College of Policing—I do not know the substance of what is alleged—but it is important that we preserve the sense of proportionality that is at the essence of this. It is easy to characterise something as Orwellian, but let us dig down to the truth of what is actually happening out there and the importance of keeping this information-gathering in communities up and down the country—communities perhaps not like the ones in which many of us live. Of course, freedom of speech is important, as is the point about not characterising people as criminals. I fully support that, which is why I think that these regulations and the code that we are looking at are so important.

I have a couple of questions for my noble friend the Minister. First, what is the cost of this whole exercise? I appreciate that he might not have the answer to that, so perhaps he can come back to me if he does not have the figures. Secondly, as my noble friend Lord Jackson mentioned, the Secondary Legislation Scrutiny Committee was critical of the process of consultation with regard to these regulations, on two, or possibly three, bases. Why was there not a formal consultation? With regard to the consultation that—

My Lords, there is a Division in the Chamber. The Committee will adjourn. We understand that there are two back-to-back votes so, for the convenience of the House, we will reconvene in about 20 minutes, after both votes have taken place.

Sitting suspended for a Division in the House.

My Lords, this feels a little like that quiz programme, “Just a Minute”: I have now got the subject back and am trying to remember where I was.

I think I had made the point that there were criticisms of the consultation process by the Secondary Legislation Scrutiny Committee, which said:

“These Regulations are drawn to the special attention of the House on the grounds that there appear to be inadequacies in the consultation process which relates to the instrument”.

My noble friend Lord Jackson also raised this point. My points were, essentially, first, why there was not a thorough and full consultation; secondly, given that there was consultation with some bodies, why there was no feedback from that so that we had the benefit of the views of those bodies that were consulted; and thirdly, why those bodies were consulted and not others. We would have benefited from a fuller consultation and, given that there was not a fuller one, from better feedback in relation to those bodies that were consulted and responded.

With that, and bearing in mind what I said about the cost, I hope the Minister will be able to deal with those points.

My Lords, in the Explanatory Memorandum, the Government say that they have consulted, although not formally, with “key policing stakeholders” but, as others have said, the Secondary Legislation Committee says in its 35th report that it asked the Home Office whether they had consulted more widely,

“for example, free speech advocates, those representing victims or data protection interest groups—and, if not, why was this not considered appropriate”.

The Government’s response worries me. They said:

“Given the democratic scrutiny that the code will be subject to and the comprehensive policing input received, the Government did not consult more widely”.

I will focus on how some of the other stakeholders might feel with the introduction of this. Parts of it are certainly welcome. My worry is about the boundaries between what are and are not non-crime hate incidents and other offences. I will come on to that.

At this point, I should declare that, as a disabled person who has used a wheelchair for a decade, I have been on the receiving end of hate crimes, non-crime hate incidents and, I am sorry to say, threatening behaviour and even assault. Some 15 years ago, I was also the victim of a harassment and stalking campaign sustained over a period of two years in which 100 incidents of escalating crimes—that is, nuisances then crimes—were committed, even though the initial incidents were not. So, as I read the code of practice, the boundaries between these different categories—especially in some of the examples, which are key to the education of officers in how they will assess what is and is not a non-crime hate incident—have raised questions.

The additional threshold test for the recording of data is helpful, especially if—as noted in paragraph 22 of the code of practice—the person

“who has experienced the incident is considered to be vulnerable”.

The existing guidelines on recognising vulnerability are extremely helpful and sensible, and to be commended. I ask the Minister: is the reference to vulnerability in the code strong enough, with only a passing reference to the guidelines then a need to click on a hyperlink?

This raises another concern: the examples focus on hate incidents, whether crime or non-crime, and ignore other considerations that police officers should perhaps address. In example D on page 15 of the code, which concerns a resident’s report of a number of NCHIs occurring in a dispute between neighbours, the wording in the box focuses entirely on whether or not to record these incidents as NCHIs. My issue is that other flags should be also raised about the neighbours’ dispute because of the volume of incidents reported. This certainly begins to look like harassment but the focus in the code is on the decision of whether to record.

The problem with harassment, especially that type of harassment, is that it escalates, often in a worsening pattern of behaviour. The early decision on whether or not to record is now weighed with the freedom of speech issue only. Part III of paragraph 31, on page 15 of the code, says:

“All recording authorities have a duty to balance the right to free expression … and/or a real risk that a future criminal offence may be committed against individuals or groups with a particular characteristic(s). All efforts should be made to avoid a chilling effect on free speech (including, but not limited to, lawful debate, humour, satire and personally held views)”.

My concern is with the phrase “all efforts”. The focus of that entire paragraph is free speech. Can the Minister assure me that the issues around an already visible pattern of behaviour—some criminal, some not—in a matter that might be, or progress to be, a crime of, say, affray, assault or harassment, are being considered only in terms of the narrow issue of crime/non-crime hate incidents and in relation to freedom of speech?

My next area of concern relates to two different points, one in paragraph 34 and one in example J, on pages 18 to 19 of the code. First, example J says:

“An individual who uses a wheelchair reports to the police that a man approached her during a house party and threatened her in circumstances that could amount to a crime under section 4 of the Public Order Act 1986. In doing so, the man also made derogatory comments about her disability. A police officer is of the view that this incident would have been recorded as a disability hate crime had this occurred in a public place given the demonstrable threat and hostility that was evident”.

The response to the scenario then focuses entirely on the Public Order Act not being enforceable in a private dwelling, therefore making the incident a non-crime hate incident, but says that, because of the threatening language and the possibility of future escalation, it should be processed and recorded.

I am horrified by this example. Assuming that threatening behaviour that could have amounted to a crime occurred, this is not just a Public Order Act offence. It could also be affray, assault or harassment, all of which are crimes. It also might not be a private event—as in a domestic one, implied by the use of “private dwelling”—even if it is in a private dwelling. If I went to a large party and was threatened—the word used at the beginning of the example—including with disability abuse, I as a victim would not understand why the Public Order Act negates my complaint. My concern would be about what just happened to me. Someone saying, “Sorry, madam, it just happened in the wrong place”, is not going to make me feel safer.

That is part of the problem with the lack of consultation with victims and community groups: this code is written for the police, with no understanding at all of where individual citizens and what happens to them fits in. Example J also illustrates a wider point for disabled people about how this code of practice will be viewed and operated, but it could equally apply to anyone with a protected characteristic.

About six years ago, I was waiting to exit through the wide ticket barriers at Euston. The woman in front of me was shouting down her phone and then, completely randomly, started to shout at me, complaining about my wheelchair being in her way and disabled people in general. This escalated into her trying to use a kick-boxing kick at me; fortunately, she missed me and hit the wheelchair, which I think left her worse off. Everyone else stood back until she ran off and then, too late, came to my aid. I had not said one word during this. I have to say that I was in shock. The noble Lord, Lord Jackson, will be pleased to hear that the British Transport Police was very helpful and supportive. The police found the CCTV and were absolutely clear that this was an attempt to assault me—the combination of shouting directly into my face and then the kick. They were also convinced that she targeted me because I was an easy target and disabled, so it was also recorded as a hate crime. But now the emphasis is on free speech.

As I read Example J, officers will spend their time focusing on whether it is or is not a hate crime incident or a non-crime hate incident and whether it needs to be recorded, rather than the highly abusive behaviour in which that woman used hate language to threaten me and attempted to physically hurt me. Can the Minister say how officers will be reminded that the priority must be to look at every incident as a whole, including other potential crimes, rather than solely to look at the code of practice?

Secondly, on the issue of reporting, I, along with many other disabled travellers, am on the end of abusive verbal incidents on trains. It happens regularly. Comments such as “People like you shouldn’t be allowed on the train during rush hour” or “Why are people like you taking up space where I want to sit?” are regular. They can and do also use abusive language, right in your face—“cripple”, “retard” or even worse. It may be a generic statement and fall under the Home Secretary’s definition of free speech, but the delivery of it leaves the recipient in no doubt that it was intended to be personal. It is personal, and train conductors say that they repeatedly see the same people behaving badly. The ability to record these incidents as NCHIs is therefore important, because it means that a pattern of behaviour can be tracked and followed, as needed. My concern is that police officers, always under pressure, might ever look only at the one incident in front of them; then, if they decide not to record it, there is no trail of consistent abusive behaviour.

Finally, the chair of a hate crime panel in the south-east said to us that they are concerned that this instrument will impact negatively on confidence in reporting. We know that confidence in the police is already low in some communities and these Benches are very concerned about it. For these reasons, starting with the lack of proper consultation as highlighted by the Secondary Legislation Scrutiny Committee’s report, and the unclear narrative in the text and examples about how this fits into broader incidents and crimes, and where the boundaries are, I give notice from these Benches that we may well want to bring this matter to the full House.

My Lords, this new Draft Code of Practice on the Recording and Retention of Personal Data in relation to non-crime hate incidents has been created following the ruling of the Court of Appeal in 2021 in Miller v the College of Policing. The court found that the recording of non-crime hate incidents was lawful, but must be subject to more robust safeguards to ensure a better balance between responding to hate incidents and protecting freedom of speech. The Labour Party supports this revised code.

The code puts a lot of weight on using common sense, but I do not believe we should rely on that phrase too much to ensure its fair and uniform application at an operational level. What is common sense to an experienced officer may not be to a new recruit having to apply these rules for the first time. It also opens the code up to being abused. A number of noble Lords have talked about the importance of the education and training of officers.

I also want to comment on the language of the Government on this matter. The Secretary of State published an article last month stating that the very concept of non-crime hate incidents is

“largely Orwellian and wrongheaded”,

and that they

“distract the police from their core duties”.

We believe that it is right to create a more balanced code, but to attack the principles of NCHIs and suggest that seeking to protect people from more serious and potentially violent crimes is outside the core remit of the police undermines the code before it has even been brought in.

We need to ensure a reasonable, measured and respectful debate on this issue. We should remember, just after the 30th anniversary of the murder of Stephen Lawrence, why the comprehensive recording of hate incidents was introduced in the first place. It was to help protect against more serious hate crimes down the line and stop what happened to Stephen from ever happening again.

As I said, the contributions from the other side of the Committee were largely on education and training, and on implementing this new code of practice in as fair and uniform a way as possible. I too remember the debate on the PCSC Bill, which was led by the noble Lord, Lord Moylan. Although I do not agree with many of the sentiments that were expressed here or in that debate, I welcome this revised code of practice.

The closing speech by the noble Baroness, Lady Brinton, gave a very interesting critique of the examples given in the code of practice and why they may not be the best examples, in her view. The points that she raised highlighted the complexity of administering it, and of the decisions that we will be asking police officers—including young police officers—to make on whether to record these incidents.

I have a specific question for the Minister regarding family courts. As he will know, we get disclosures of police records in family courts. About 80% of the cases that we see in family courts have domestic abuse allegations made. We also get disclosure of police callouts. If there are non-crime hate incidents, my understanding from reading the code is that they could, at the discretion of a chief constable, be included in the enhanced DBS check. Am I right? My assumption is that if it is relevant, it can be disclosed to the family courts. That is the one important question for me, given the nature of the other roles that I do. I look forward to the Minister’s response.

I thank all noble Lords for participating in this very interesting and important debate, particularly for the supportive and constructive atmosphere in which it has taken place. I reiterate my gratitude to the College of Policing and the National Police Chiefs’ Council, and to senior police officers who helpfully have ensured that the code was fit for purpose. Its introduction will be another step forward in our effort to embed common-sense policing across the system, while ensuring personal data and the fundamental right to free speech are better protected.

I will begin by responding to the various points raised by noble Lords and commence with those raised by my noble friend Lord Sandhurst. I thank him for his support for the code. On his request relating to forces reporting NCHIs, it is important to avoid creating additional burdens on the police. As I said, NCHIs are vital for building community confidence and ensuring that significant harm and future criminal offences can be averted. The key thing is to ensure that this recording is properly regulated and that personal data is recorded only when it is necessary and proportionate to do so. This is precisely what the code does.

I also want to be clear that we will not ask forces to delete all existing records because valuable police intelligence would be lost and, fundamentally, it would not be a proportionate use of police resources to undertake a review of all existing records. However, where these records exist and if in any context they are reviewed—for example, during general policing inquiries for the purposes of an enhanced DBS certificate or when a person makes a subject access request—the code makes it clear that particular care should be taken to review the record before considering disclosure. Part of the consideration will include deciding whether, applying the threshold and processes set out in the code, the record should have been created in the first place. If not, the record should be deleted. Individuals can also seek removal of data held by forces via subject access requests. In addition, any records which no longer have a policing purpose and are older than six years will automatically be deleted in line with force record retention practices.

To address the final point raised by the noble Lord, Lord Ponsonby, in relation to family courts, if a non-crime hate incident meets the threshold to be recorded it might be disclosed to the family and other courts by the police in accordance with the Family Procedure Rules and the Civil Procedure Rules in the usual way.

Various noble Lords raised particular cases in the course of their speeches. I am sure noble Lords will appreciate that it would not be appropriate for me to comment on particular incidents, but I can say that the new code is designed to ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, not simply because somebody is offended.

In his speech, my noble friend Lord Strathcarron raised issues on the role of the College of Policing. I empathise entirely with much of what he said, and his points were echoed by other noble Lords in the Committee. The Home Office is working very closely with the College of Policing to ensure that its authorised professional practice accurately reflects the contents of the new code. Much of the content of my noble friend’s speech was correct.

In the same vein, I welcome my noble friend Lord Leicester’s speech supporting the code of practice. To be clear, the college will publish operational guidance documents for the police on how to deal with the many different types of crimes and incidents, which will be known collectively as the authorised professional practice. It will be considered the official source of professional practice for policing. As it is vital to forces and will cover a number of technical matters, it important for the college to determine how best to operationalise the content set out in the code. However, we are clear that the college’s guidance must be consistent with the provisions and principles in the code before the Committee today, which will have statutory effect once it is approved by Parliament. That means that when the police are taking relevant decisions, they must give due consideration to what the code says.

The college has recently consulted on the draft updated version of the APP, which has been amended to ensure that it aligns with the principles set out the code. It is currently considering the responses received and will make any necessary changes before the code comes into effect. The college will then publish the final, updated version of the operational guidance, once the code is approved by Parliament, which will take account of the points raised during the consultation.

On my noble friend’s point about training for officers, the College of Policing is responsible for determining the training requirements for forces and has developed an e-briefing pack which will be made available one week before the updated guidance enters into effect. The College of Policing will also communicate with forces, via chief constables, about the changes prior to the code and the updated operational guidance coming into effect.

I will take away the point raised about Article 10 training and raise it with the college.

Sitting suspended for a Division in the House.

I turn to the speech of my noble friend Lord Jackson of Peterborough. Of the issues he raises, I will just address the question of how the code interrelates with DBS checks. This code does not prohibit disclosure of non-crime hate incident personal data as police information on an enhanced criminal record certificate issued by the Disclosure and Barring Service—the DBS. This is for two main reasons. First, NCHIs are simply one form of police intelligence that sits alongside many others—missing persons data, anti-social behaviour, unproven allegations of sexual assault and so on. They exist in line with the police’s common law powers to prevent crime. There are circumstances where police non-conviction information of various kinds will be considered for disclosure in enhanced DBS checks used in relation to roles which involve close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding the rights of others, particularly the most vulnerable.

Secondly, the rules surrounding disclosure of this type of data are already governed by statutory disclosure guidance produced by the Home Office. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data, collected by the police to prevent crime, hence why it is covered in the same statutory guidance. This statutory disclosure guidance has been tested by the courts, and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and probably unnecessary and disproportionate.

The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information is relevant to the purpose for which the check is sought, it ought to be disclosed in line with the guidance and the applicant invited to make representations. Only in cases where there is no room for doubt that the information should be disclosed should a decision to disclose be taken without first giving the applicant an opportunity to make representations. Should the decision to disclose be confirmed following any representations, that information will be included on the certificate that is sent to the applicant only. The applicant also has a right to appeal that disclosure through the independent monitor who considers cases where an individual believes that information disclosed within a DBS enhanced criminal records certificate is either not relevant to the purpose that the check is to be used for, or that it ought not be disclosed. The safeguards therefore balance the rights of job applicants and those of vulnerable people they might have contact with.

Alongside the existence of this strict statutory disclosure guidance, I can reassure your Lordships further. DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020. It is imperative that we do not set an unhelpful precedent by legislating in a way that undermines the police’s ability to build intelligence on possible offending and risks to life more broadly.

The first of the two questions raised by my noble friend Lord Bourne was in relation to the cost of this scheme. Information is published in the economic note on the code on the GOV.UK website. At paragraph 19, there is an explanation of the costs:

“Costs related to this are estimated at £9,200 in the central scenario and cover 10 per cent of chief inspectors and 1 per cent of sergeants being required to read the update”.

My noble friend will see that paragraph 21 states:

“The range of estimated costs vary from the central estimate of £9,200 with a low estimate of £3,500, and a high estimate of £0.4 million”.

A careful analysis has been made of the potential costs and the time taken to consider the code. I hope that that addresses the cost question.

During the debate, my noble friend Lord Bourne and a number of other noble Lords raised a question about consultation. This, of course, is the issue that was raised by the Secondary Legislation Scrutiny Committee. As I mentioned earlier, the Government consulted relevant policing stakeholders, including the College of Policing, the National Police Chiefs’ Council and senior police officers. The code is designed to be used by the police on a day-to-day basis, so it is right that we consulted them. Let me be clear that extensive legal and operational nuances were considered during the drafting of the code. These nuances were worked through with experts in the policing, data protection and legal fields, and the Government are confident that this is the right approach for such a specialised code.

I accept what the Minister said and thank him for it, but I was keen to find out why the feedback was not published.

I will make inquiries in relation to that and write to my noble friend.

I turn to the remarks made by the noble Baroness, Lady Brinton. We were all shocked and saddened by the offending to which she was exposed that she described to the Committee. It is the Government’s view that the code takes particular care in relation to vulnerable individuals. The examples it gives are designed to be examples of non-criminal offences. The matters which were described by the noble Baroness were criminal offences, and the police will follow other guidance if an actual crime has occurred. The incident at Euston which she described sounded to me like an offence of assault at the very least.

The scope of the code is limited to non-crime hate instances. The examples in the text are hyperlinked and are used to illustrate non-crime hate incidents. The code states that,

“where the behaviour of the subject falls short of criminal conduct but may later be evidence of a course of criminal conduct”

the threshold to record a non-crime hate incident may be met. I hope that provides some reassurance to the noble Baroness.

I believe I have addressed the points raised by the noble Lord, Lord Ponsonby. I commend the draft code to the Committee.

Motion agreed.