Draft Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents
(1 year, 6 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Miss Sarah Dines)
I beg to move,
That the Committee has considered the draft Code of Practice on the Recording and Retention of Personal Data in relation to Non-crime Hate Incidents.
It is a pleasure, as always, to serve under your chairmanship, Sir Robert. The draft code was laid before the House on 13 March. Non-crime hate incidents have attracted a significant amount of debate and controversy, particularly focused on concerns relating to free speech. The topic attracted attention during the passage of the Police, Crime, Sentencing and Courts Act 2022. The strength of feeling on this matter, both in the House and among the public, is entirely understandable, and that is why we laid this code before Parliament.
The collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. The information pertains to incidents that are not crimes, and provides the police with the means of understanding tensions in communities, or cases involving particular individuals, before they can escalate to serious harm. In that respect, the data is important in helping the police to build intelligence, so that they can understand where they must target resources to prevent serious crimes or harms.
The Government are absolutely clear that vulnerable individuals and communities must continue to be protected, and the police must be supported in that crucial work. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be careful about what information is kept on an individual’s record—a point that both the Home Secretary and I have made clear. That balance has unfortunately not always been struck, and that is precisely what the code was designed to address. The police should be focusing on tackling violent crime, neighbourhood crime, antisocial behaviour and the other crimes that matter to the public. Good old-fashioned common-sense policing must be the watchword.
The UK is an open and diverse country, and freedom of speech is one of the values that defines us as a society. There have been concerns that those who express views that some may consider offensive, but that are not against the law, were at risk of becoming the subject of a non-crime hate incident report, which might have resulted in their personal data being stored on a policing record. The code addresses those concerns by introducing new safeguards that ensure that personal data may be included on 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. That 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, and clear case studies to illustrate how that fundamental right should be considered in practice by the police.
We are confident that the code fully reflects the Court of Appeal judgment handed down in December 2021 on the Harry Miller v. the College of Policing case. The Court found that the recording of NCHIs was lawful, but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have set out, that is exactly what the code provides for.
The new code will also ensure that the police can prioritise areas where help is really needed. In practice, that means focusing on serious crimes, including burglary, violent offences, rape and other sexual offences. I am sure that hon. Members will appreciate that the introduction of the code is another positive step towards embedding the important notion of common-sense policing across the system.
I put on record my gratitude, and the Home Secretary’s gratitude, to the College of Policing, the National Police Chiefs’ Council and senior police officers, who engaged substantially with Home Office officials throughout the drafting process to ensure that the code will work from an operational perspective. The College of Policing is updating operational guidance for police on the recording of such incidents, to ensure that their guidance aligns with the code. The college will also roll out the requisite training for police officers, to ensure that the principles in the code are fully embedded in everyday policing practice. That will ensure that the code is applied consistently by forces across England and Wales.
The Government have listened to the concerns raised in Parliament, and have acted on them. The code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while ensuring that vulnerable individuals and communities are safeguarded. That is a balance. A lot of thought has been put into the code. We are absolutely committed to supporting the police in fulfilling their vital role of keeping the public safe, and are clear that their focus must remain catching dangerous criminals and bringing them to justice. That is why we are taking action to ensure that a clear threshold must be met before incidents of this type are recorded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. I commend the draft code to the Committee.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under your chairmanship, Sir Robert, and I thank the Minister for her opening contribution. I think that she, like me, has been impacted by the scheduling of the Public Order Bill, which has meant last-minute changes to the Front-Bench line-up on this important Delegated Legislation Committee.
As the Minister outlined, the new code of practice aims to establish a proportionate and common-sense approach to the recording of non-crime hate incidents. Following the ruling by the Court of Appeal in the Miller case, and the new guidance produced by the College of Policing, we agree that there is a need to strike the right balance between protecting freedom of expression and responding to incidents of hate. There is an obvious difference between hate crimes that target people on the basis of their characteristics and unpleasant behaviour that does not cross the criminal threshold. The College of Policing has already published guidance on how police forces should deal with the latter, and that guidance is incorporated in the code of practice.
We will not oppose the code, and we urge the Government to work closely with the college to deliver on it. However, there is a real need to lower the temperature around conversations on this issue, as inflammatory rhetoric helps nobody. We are concerned about some of the language used in the Government’s framing of this issue. The Home Secretary has described non-crime hate incidents as “Orwellian and wrongheaded”, and talked of “politically correct distractions”. The idea that the police are focused on anything other than preventing crime, catching criminals and keeping people safe is grossly unfair to the officers whom we all work with, day in, day out.
The Policing Minister has said that the
“focus must remain on catching dangerous criminals”,
while the Home Secretary noted that
“The new code will ensure the police are prioritising their efforts…focusing on tackling serious crimes”.
If the Government’s motivation is truly to free up police time, so that the police can focus on tackling crime, may I suggest that we thoroughly consider the primary role that policing is having to play in providing mental health support, locating missing people, or providing social care? I could go on.
I am interested to see the differing cost analyses produced by the Home Office, which expects the cost of implementation to be around £9,000, but it concedes that it could be up to £400,000. That higher estimate is based on the assumption that there is a slightly longer code of conduct being read by more officers at chief inspector level. I suggest to the Minister that the general public may prefer a greater proportion of senior officers to have read and acquainted themselves with the new code of practice. That seems a reasonable request, given the sensitivities around the topic. I suspect that the costs are likely to be on the higher side, given how important it is that we get this right.
I have looked at the examples from page 14 onwards. A great deal of emphasis is placed on taking a common-sense approach, as the Minister said, but the phrase lacks clarity. What is common sense to me might not be common sense to the Minister, and what is common sense to her might not be to individual officers. If there is a degree of mitigation in someone’s rationale for their conduct, that may result in an incident not being recorded. What happens if someone becomes a repeat offender on that basis? How do we monitor that, and ensure that no one abuses that ambiguity? We agree that striking a balance between protecting freedom of speech and responding to hate incidents is right and proper, and the documentation certainly sets out a much clearer rationale than the Home Secretary did, but the code of practice will come unstuck if clarity is not provided to the officers who have to work with it at operational level.
We will continue to support frontline officers and the College of Policing on getting this right, but I ask the Government to be thoughtful and respectful in further discussions on this important matter.
Miss Dines
I am most grateful for the co-operation of the Opposition, because we all hold dear free speech and the need to protect communities. The need for balance has meant that there has been a lot of careful thought about this issue from senior police officers, the National Police Chiefs’ Council and the College of Policing. It is unusual to give worked-through examples; a lot of thought was put into the examples given. Of course, in all aspects of life, there is an element of subjectivity. That is why the code is quite well defined and detailed. We must be thoughtful in striking a balance. I reassure the Opposition spokesman that it will be specialist officers recording this data; it will not be new recruits, or those without proper training or teaching.
The point was raised that the police deal with mental health, missing persons and social care. The police have always, to some extent, had a wider community role; their role has not solely been about policing. That is what we expect from well-rounded police officers. However, having provided 20,000 extra police officers, the Government are confident that there will be more time for a focus on stopping crime.
Producing the draft code has been a detailed exercise that has taken some time, and has involved careful thought. Again, I am grateful for the Opposition’s co-operation; we are working together. The hon. Lady and I both want to lower the temperature. We want to get this right in order to protect free speech and our communities. I am grateful to hon. Members for coming along, including those who have not spoken, and to the Opposition for agreeing not to oppose the code. On behalf of the Home Secretary and the Government, I again thank the College of Policing, the National Police Chiefs’ Council, senior officers, and civil servants who have assisted in this exercise. The code’s introduction will further progress the Government’s work on promoting and embedding common-sense policing across the system.
To sum up, the code will better protect personal data and the fundamental right to free speech. I therefore commend it to the Committee.
Question put and agreed to.