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

Lord Bourne of Aberystwyth Excerpts

Wednesday 26th April 2023 Grand Committee

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.

[Lord Bourne of Aberystwyth (Con)]

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—

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

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.

--- Later in debate ---

[Lord Bourne of Aberystwyth (Con)]

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.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

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.

[Lord Bourne of Aberystwyth (Con)]

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

[Lord Murray of Blidworth (Con)]

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.