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

Lord Strathcarron Excerpts

Wednesday 26th April 2023 Grand Committee

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.

[Lord Strathcarron (Con)]

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.

[The Earl of Leicester (Con)]

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.