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

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.

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.

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:

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”.

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