Lord Davies of Gower
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Baroness Lawlor (Con)
My Lords, I support these amendments because it is very important that live facial recognition should be subject to legal oversight and judicial oversight; there should be a law. We should see such amendments in the context of an overall parliamentary democracy which believes in lawful freedom of expression, whether it is in Parliament, the newspapers or public places. Live facial recognition without a proper legal framework could be used in an undemocratic fashion. Police, sadly, will find evidence very often for whomever they wish to convict. I know that is not necessarily the case, but if you are under pressure as a police officer to make your case stick, you will trawl whatever evidence you can to get it through to the stage of being investigated. I urge your Lordships to support these amendments because they will strengthen our democracy, and it is important that people should feel that they live in a free country, not in one subject to the sort of powers we see exercised in other countries, such as China.
Lord Davies of Gower (Con)
My Lords, this group of amendments returns us to an issue debated at some length in Committee: the use of live facial recognition technology in policing. I am grateful to the noble Baroness, Lady Doocey, and the noble Lord, Lord Clement-Jones, for tabling these amendments on this important topic.
As set out in Committee, we on these Benches cannot support proposals that would severely restrict or pre-empt the operational use of live facial recognition by law enforcement. Live facial recognition is an increasingly important tool in modern policing. Used lawfully and proportionately, it has already demonstrated its value in identifying serious offenders, locating wanted individuals and preventing violent crime before it occurs. It has been deployed particularly effectively in high-risk environments such as transport hubs and major public events, where rapid identification can make a decisive difference in protecting the public.
That does not mean that safeguards are unnecessary. There must always be a careful balance between the protection of civil liberties and the need to equip police with effective tools to tackle serious crime. The use of new technologies must be proportionate and subject to appropriate oversight, but the amendments before us would go significantly further than that. In different ways, they would either prohibit particular uses of the technology, place rigid statutory barriers in its way or create restrictions that would unnecessarily impede the ability of the police to deploy it where it may be most needed. Amendment 374 would prohibit the deployment of live facial recognition in the context of public assemblies or impose extensive prior authorisation requirements. It risks tying the hands of the police at precisely the moments when rapid and flexible operational decision-making may be required.
We must recognise the points raised in Committee that the Government are currently consulting on the future regulatory framework for live facial recognition. To attempt to settle these questions piecemeal through amendments to this Bill would risk creating an incomplete or inconsistent framework. While the concerns raised by noble Lords are legitimate and deserve careful consideration, we should not default to restricting a technology that has already shown its potential to disrupt serious criminality and protect the public. The challenge is not to prohibit its use but to ensure that it is deployed responsibly, lawfully and proportionately. For those reasons, we cannot support the amendments in this group. I look forward to the Minister’s response.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
I am grateful to the noble Baroness, Lady Doocey, for tabling these amendments and to the noble Lord, Lord Davies, for supporting some of the arguments that I will make in response to them. The noble Lords, Lord Clement-Jones, Lord Strasburger and Lord Pannick, and the noble Baroness, Lady Lawlor, have all put their finger on their concerns around the use of this technology.
I will begin by providing a view of what live facial recognition does. It allows for real-time location of individuals of interest to the police. It scans the faces of those passing a camera in real time, comparing faces against a predetermined, specific watch-list of, potentially, wanted criminals, vulnerable missing persons or individuals posing risks to public safety. If no match is made—this goes to the point that the noble Lord, Lord Strasburger, made—currently, the scanned face is deleted instantly. Every deployment and every specific bespoke watch-list for that deployment must have a defined policing objective, be supported by clear intelligence and ultimately be determined by humans.
Noble Lords will be aware that the use of facial recognition technology in all circumstances, including in live facial recognition, is already subject to safeguards, including those provided in the Human Rights Act and the Data Protection Act. I agree that there needs to be a framework, which is the nub of what I think all noble Lords have said in this debate.
The noble Baroness, Lady Doocey, will know that the Government had a 10-week consultation for that very purpose—to look at the issues of a legal framework where law enforcement use of biometrics, facial recognition and similar technologies could be used. The consultation ended on 12 February. I give the House an assurance that the Government intend to respond to it by the summer; we have more or less a 12-week deadline from the end of its closing, but it will be by the summer. The consultation is clear that the Government need to design a new framework and assess how the police use technologies such as facial recognition. It needs to ensure that there are safeguards, as noble Lords have mentioned, around the rights to freedom of expression and freedom of assembly, that we protect these rights and that facial recognition technology is demonstrably proportionate to the seriousness of the harm being addressed.
We are currently considering the consultation and, as the noble Lord, Lord Davies of Gower, said, that should take its course. However, we intend to set out our proposals in due course, which will be subject to scrutiny by both Houses of Parliament. I hope noble Lords accept that it would not be appropriate to pre-empt the outcome of the consultation or the proposals that Government will bring forward, which we will ensure have new legal framework for the use of facial recognition technology by law enforcement agencies.
While I think that the points made by noble Lords have real merit, I hope that, with the comments I have made and the reassurances I have given, we will save the difficult debate about regulation, how it operates and what the proposals mean for a proper legal framework for another day, which will come very soon. I hope the noble Baroness will—
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I declare my interest as a member of the APPG for Gypsies, Travellers and Roma, and speak in support of Amendments 375, 466 and 468. I thank the Minister, the noble Lord, Lord Hanson, for his introduction to this important group of amendments. As has been said, this is the start of a journey to reach equality of access to services for those currently living a nomadic life.
Several noble Lords across the Chamber made representations against the Police, Crime, Sentencing and Courts Act, brought in under the previous Government in 2022 and subsequently ruled to be a breach of the Human Rights Act. Those who objected listed the effect the new restrictions would have on family life, those with health issues and access to education, et cetera. In a society that purports to uphold the rationale of equality for all, it is unacceptable to discriminate against those who follow a different lifestyle from the majority of us.
I have long campaigned for legislation to require every local authority to provide permitted permanent sites for Gypsies and Travellers alongside permitted temporary stopping sites for those who travel as part of their culture and way of life. This has always been rejected by Governments of different political persuasions, and I welcome the Minister’s comments this evening on the provision of sites in the future.
I am now lucky enough to live in an area that has adequate, decent provision for those identified as Gypsy, Roma or Traveller. Several of those sites are within a short walk of my home. I am delighted that those people are able to be married in the church in which I also worship, and that they are able to grieve the passing of their loved ones in the same environment. Everyone should be able to access education for their children, alongside healthcare for their elderly, even if they are moving from area to area around the country. A stopping place or site which allows this to happen should be a right, and not left to a local landowner to permit for short periods.
This small group of amendments is not a magic wand to ensure that sites appear overnight, but it is a step in the right direction to help families raise their children in a relatively safe environment. I support the Minister’s amendments.
Lord Davies of Gower (Con)
My Lords, I welcome the opportunity for debate that the Government’s Amendment 375 has afforded us. This is obviously a highly contested issue but, before we start, I put on record the very specific nature of the issue we are debating. In 2024, the High Court declared that a specific section of the Conservative Party’s Police, Crime, Sentencing and Courts Act 2022 was incompatible with Article 14, the prohibition of discrimination, and Article 8, the right to private life, of the European Convention on Human Rights. That section extended the prohibition on returning to land covered by requests to leave from three to 12 months. That is why the Government are now attempting to reverse that change. The judgment did not, as claimed in Committee, nullify that no-returns order.
I will make His Majesty’s Loyal Opposition’s position clear: although we accept that the law as it currently stands renders the continuation of the current offence of returning to or re-entering prohibited land untenable, we would ultimately rather that the human rights law that has caused this incompatibility be repealed and the offence upheld. It is not racial discrimination to uphold one of the fundamental governing systems of our society. As perhaps some noble Lords in the Chamber will want to hear, private property has been a continuous thread throughout our history that has galvanised peace and prosperity in our country. Remove the right to private property and you create a system that favours freeloaders and fraudsters.
In the judgment, the presiding judge spoke of a balanced structure between the property rights of landowners and occupiers and the interests of Travellers. The increase in a no-returns order from three to 12 months would supposedly disproportionately affect the balance in favour of landowners. I do not believe that the interests of trespassers should be equally balanced with those of landowners and occupiers, if at all. That does not pertain to the Gypsy Traveller community; it does not matter who the people are. Declaring that the right to private property should trump the subjective desires of an individual or group does not have a racial element. It is an entirely neutral law and fundamentally liberal, in that it affords the same freedoms to all.
It is true to the latter point that it is disheartening to see the party that was once the vehicle of Manchester liberalism now supporting such a partial and anarchic view of the world. Therefore, if the law posits that upholding the belief in private property and enacting its enforcement in law is considered wrong, the law should be repealed. If the law ascertains that private property undermines an abstract theory of human rights and that the latter should prevail, the law should be repealed. If the law favours the human rights of the infringer over the victim, the law should be repealed. If the law is able to overturn the decision of a sovereign, elected Parliament acting of its own volition, the law should almost certainly be repealed.
Therefore, although we welcome the Government’s attempt to find a compromise between our legal commitments, we are unfortunately of the opinion that they are amending the wrong Act entirely. They are still rather dogmatic in their commitment to this outdated doctrine, but they are simply kicking the can down the road and delaying the inevitable. Whether the courts allow a three-month no-return period is immaterial; there would still exist an extrajudicial doctrine that has the ultimate say over the United Kingdom’s Parliament. There will simply be an appeal to this amendment, and if that is unsuccessful, they will find themselves facing the ECHR in another challenge to another Act.
We are sympathetic to the Government’s attempt at a balancing act, but they are targeting the symptoms over the cause. That cause is the ECHR enshrined in the Human Rights Act. The ECHR has served its purpose, but the fact that it now favours rule-breakers over rule-takers shows that it does so no longer. The Government must recognise this truth, and I suspect that deep down they do. They should follow the advice of the Conservative Party and leave the ECHR. Perhaps the Minister will reply bearing good news.
Lord Pannick (CB)
Before the Minister replies, I suggest to the noble Lord, Lord Davies, that the rule-breakers are not those who want to return within three months; they are the local authorities that have statutory obligations to provide proper sites for Travellers but are failing to do so.
Lord Hanson of Flint (Lab)
Let me clear up something straight away. There is not going to be a meeting of minds between me and the noble Lord, Lord Davies of Gower, on the abolition of the ECHR. I will leave it at that. There is no common ground between us. Yes, we are generally looking at some reforms, but there is no common ground on abolishing the lot, which is what the noble Lord seeks to achieve. There is blue/red/orange water between us on this; I will leave it at that.
On the question raised, I am grateful for the support of my noble friend Lady Whitaker and the noble Baroness, Lady Bakewell of Hardington Mandeville. We have moved in light of the judgments that were made, and we have instated the three-month period in this legislation. That is the right thing to do in relation to the legislation. I think the noble Lord, Lord Davies of Gower, accepted that, while having a wider target. At the moment, I will take his acceptance of that as support. I thank the noble Baroness, Lady Bakewell, for her support, and I am grateful for the constant chivvying of my noble friend Lady Whitaker on this issue.
In my opening remarks, in anticipation of what would be said, I said that the Government agree that planning appropriately for the housing and accommodation needs of our diverse communities is essential in supporting sustainable and inclusive growth. It is important, as the noble Lord, Lord Pannick, just reminded the House, that the responsibility to set pitch and plot targets for Traveller sites lies with local authorities, and absolutely right that they must identify specific deliverable sites sufficient for five years against targets. As I said in my opening remarks, a revised National Planning Policy Framework and the Planning Policy for Traveller Sites were published at the end of December 2024, following extensive consultation.
The Ministry for Housing, Communities and Local Government is currently consulting on a new national planning framework. That consultation runs until 10 March. The noble Baroness, Lady Bakewell, and my noble friend Lady Whitaker mentioned the need to look at more sites. That is actively being looked at. Despite the wide reservations of the noble Lord, but with the support of the Liberal Democrat Benches and my colleague Lady Whitaker, I hope that my amendments can be accepted by the House tonight.
Lord Davies of Gower (Con)
My Lords, the recent ruling of the Supreme Court in R v ABJ and R v BDN has thrown the law of public protest into even greater confusion. That case relates to two protesters prosecuted under Section 12(1A) of the Terrorism Act 2000 for expressing public support for Hamas, a proscribed organisation. The appellants claimed that their charges under the Act represented a disproportionate interference with their right to freedom of expression under Article 10 of the European Convention on Human Rights. The Court unanimously dismissed this appeal and, in doing so, ruled that the Section 12(1A) offence in the Terrorism Act does not represent a disproportionate interference with the convention rights.
I raise this ruling because it highlights the confusion around protest law ever since the Supreme Court delivered a different ruling in the case of DPP v Ziegler in 2021. We have discussed the implications of the Ziegler ruling in this House on a number of occasions. Indeed, the noble Lord, Lord Faulks, has again reminded us of the details in that case. There is a clear tension between the court’s ruling in Ziegler and its ruling last week.
The court has made it clear that the Ziegler logic does not apply to the Terrorism Act defence but has not yet rectified the damaging consequences of the Ziegler decision. The basis of the court’s reasoning in Ziegler was the lawful excuse defence in Section 137 of the Highways Act 1980. In Committee, my noble friend Lord Cameron of Lochiel and I tabled amendments to remove the reasonable excuse defences from a number of Acts that are used to prosecute highly disruptive protesters, including the Highways Act and the Public Order Act 2023, and from this Bill.
When I spoke to those amendments, the Minister said that,
“the reasonable excuse defence is necessary in these instances to ensure an appropriate balance between protecting the wider community and the right to protest”.—[Official Report, 13/1/26; col. 1633.]
It is clear that the balance has not been made. I have not tabled those amendments to remove the reasonable excuse defences again, apart from Amendment 377B, which would remove the reasonable excuse defence from Section 137 of the Highways Act. I can think of no possible excuse for anyone purposefully to block the highway unless they are authorised to do so, such as the police or officers of National Highways. Removing that defence would render the issue in Ziegler null and void since that defence was the issue under consideration by the court.
However, I accept that the problem has now grown. The Supreme Court’s decision in the Ziegler case means there is now judicial precedent, and defence lawyers up and down the country have been lining up to utilise that argument so their clients can get off scot free. That is why I will be supporting Amendment 377 from the noble Lord, Lord Faulks. While I would prefer to remove those defences entirely, it would be better that the clarity in the law provided by Amendment 377 was made. His amendment would apply more widely than mine and therefore, I am happy to admit, provides a more substantial solution to the problem.
I would like to pick up on something that the noble Lord, Lord Pannick, said in Committee:
“much of the criticism of Ziegler fails to recognise that the courts themselves have understood that Ziegler went too far, and that what Parliament has determined in relation to the law is the governing law”.—[Official Report, 13/1/26; col. 1623.]
I accept his interpretation that the courts by subsequent decisions have recognised the issue of Ziegler, but the decision in Ziegler still stands as case law. It has not yet been overturned. I think that serves as one of the strongest arguments for Parliament to pass Amendment 377 and rectify the error that the courts have themselves acknowledged.
If the European Convention on Human Rights prevents the application of the law as passed by Parliament or prevents the conviction of those who should be convicted, that demonstrates that we should leave the ECHR, but while we remain within the purview of the Strasbourg court and while the Human Rights Act remains on the statute book, the decision in Ziegler needs to be reversed. Therefore, if the noble Lord, Lord Faulks, wishes to divide the House on Amendment 377, he will have our full support.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I am grateful to all noble Lords who took part in this short but important debate, and I am grateful to the noble Lords, Lord Faulks and Lord Davies of Gower, for tabling these amendments which seek to narrow the existing lawful or reasonable excuse defences that may be used for public order offences.
It may be helpful to set out how a lawful excuse works in practice. A person is automatically treated as having a lawful excuse only under two specific circumstances. The first is if the defendant honestly believes that the person who is entitled to consent to the damage has given consent or would have consented if they knew of the circumstances—for example, an honest belief that the owner of a car in which a child was locked on a hot day consented, or would have consented, to the defendant smashing the window to get the child out. The second is if the defendant acts to protect their own or someone else’s property and they honestly believe both that the property needs immediate protection and that their actions are reasonable—for example, a person damages one person’s property while accessing the property of another to prevent a fire. It does not matter whether a person’s belief in those circumstances is reasonable or justified; it just needs to be honest.
Whatever the failings of, or, indeed, one’s views on, the Ziegler judgment, as the noble Lord, Lord Pannick, said in his sagacious contribution, case law has moved on and the Supreme Court has made subsequent rulings which chart a clearer path. It is the case that the right to private property will always need to be balanced with other convention rights, such as the right to protest and freedom of expression. This will have to be judged on a case-by-case basis, but leading case law has set out the parameters, and the Court of Appeal did not say that the exercise of a person’s convention rights could never form the basis of lawful excuse for criminal damage.
While I acknowledge the concerns of noble Lords, I have a great deal of sympathy for the arguments advanced by the noble Lord, Lord Marks. It is for the Crown Prosecution Service and the courts to decide what may constitute lawful or reasonable excuse in individual cases. Further, the current scope of the defence allows the CPS the necessary flexibility to consider the full circumstances of each case on its merits. The types of behaviour that noble Lords have suggested, such as intimidating or harming members of the public or the risk of damaging property, are unlikely to be considered a reasonable excuse. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Davies of Gower
“Extension of notice period for public processions(1) Section 11 of the Public Order Act 1986 (advance notice of public processions) is amended as follows.(2) In subsection (5) for “6” substitute “28”.(3) In subsection (6) for “6” substitute “28”.”Member's explanatory statement
This amendment would extend the notice period that is required for public processions to take place from 6 to 28 days.
Lord Davies of Gower (Con)
My Lords, this amendment seeks to extend the notice period for public processions from six days to 28 days. The Government have resisted this; however, the police feel that it is difficult to operate under the current system and would prefer that it was 28 days as opposed to six. On that basis, I think we should be supporting the police, and I beg to test the opinion of the House.
Lord Davies of Gower
“Prohibition of protests(1) Section 13 of the Public Order Act 1986 (prohibiting public processions) is amended as follows.(2) For subsection (1) substitute—“(1) The chief officer of police may apply to the Secretary of State for an order to prohibit the holding of all public processions (or any class of public processions so specified) for a period of not more than 3 months in any district or part of a district if either of the following conditions are met.(1A) The first condition is that the chief officer of police reasonably believes that the powers under section 12 will not be sufficient to prevent a public procession in the district or part of the district from resulting in –(a) serious public disorder,(b) serious damage to property, or(c) serious disruption to the life of the community.(1B) The second condition is that the procession would place undue demands on the police.”(3) In subsection (2)—(a) omit “a council may with the consent of”;(b) after the first “Secretary of State” insert “may”.”
Lord Davies of Gower (Con)
My Lords, this amendment relates to the prohibition of protests, where the chief officer may apply to the Secretary of State for an order to prohibit the holding of all public processions, and where he or she considers there may be serious public disorder, damage to property or, indeed, serious disruption to the life of a community. That is an eminently sensible amendment, and the Government have resisted this again. However, I feel that it would be a great tool in the box for police, so I look to divide the House on it.
Lord Marks of Henley-on-Thames (LD)
My Lords, the noble Lord, Lord Pannick, said that the fact that this access is to be authorised by regulations is a saving grace. We know full well that in this House, fatal Motions virtually never succeed. The Conservative Front Bench may take some comfort from the fact that there would be provision for regulations, but the reality is that once the enabling legislation is passed, regulations will be in the hands of the Government, and nobody can do anything about it.
This is an issue of consent. People who apply for driving licences do so and have done so for many years on the basis that their photographs and biometric data are provided for the limited purpose of applying for a driving licence—that goes for all the information they provide. It is not for the purpose of enabling a trawl for suspects. One can envisage a position where, in some circumstances, authorisation to use information in public hands, as the noble Lord, Lord Hogan-Howe, suggested, may be appropriate, but this is not the place for it to be provided for by regulations subsequent to and consequent upon this enabling clause.
It is a question of public trust. The information and photographs are provided by applicants for driving licences based on the trust that they will be used for that purpose and that purpose alone. To misuse that information to enable a trawl of photographs to see if they might be suspected of some offence, with nobody having any real control over that use, is an abuse of trust. For that reason, I support the amendment.
Lord Davies of Gower (Con)
My Lords, I will address Amendment 380 in the names of the noble Baronesses, Lady Doocey and Lady Moulsecoomb, and the noble Lords, Lord Clement-Jones and Lord Strasburger. I am grateful to them for raising an issue that deserves careful consideration. The amendment would prevent authorised persons using information held on the Driving and Vehicle Licensing Agency database for biometric searches using facial recognition technology. It is right to ensure that Parliament scrutinises these emerging powers thoroughly. Public trust in policing is vital, and it is only through open debate and clear safeguards that such trust can be maintained.
The DVLA database contains photographs and personal information provided by millions of law-abiding citizens for the specific purpose of licensing drivers, and it is therefore entirely understandable that noble Lords should question whether it is appropriate for that information to be used in other contexts, particularly the context of advanced biometric searches. The principle that personal data should not be repurposed without clear justification is one that many of us across the House share.
However, while the concerns behind this amendment are sincere and valid, I fear that it is unnecessary and ultimately misguided. It would risk undermining the ability of our police and law enforcement agencies to prevent and investigate serious crime. First, it is important to recognise the operational value that carefully regulated facial recognition tools can provide to modern policing. The technology, when used responsibly, can assist officers in identifying suspects in serious crime, locating dangerous offenders and protecting the public in situations where time is of the essence. It can be particularly valuable when investigating crimes involving unidentified individuals captured on CCTV or other images.
The police already rely on a range of databases and identification tools to perform these tasks. Photographs from custody suites, passport records and other lawful sources have long assisted the police in identifying suspects and victims alike. Facial recognition technology represents in many ways a technological evolution of that long-standing investigative practice. The amendment before us would place a blanket prohibition on the use of DVLA images for biometric searches involving facial recognition. Such prohibition risks creating an artificial and potentially harmful limitation on investigative capability. If a suspect’s image appears on CCTV and the only high-quality image available for comparison is contained within a DVLA database, the amendment would prevent police even conducting that comparison. We must ask ourselves whether that is a proportionate outcome.
Secondly, it is worth emphasising that the use of facial recognition technology by police forces in the United Kingdom is not taking place in a regulatory vacuum. The deployment of such technologies is already subject to a framework of legal safeguards, oversight and guidance. Police forces must operate within the boundaries of data protection law, including the principles established under the UK general data protection regulation and the Data Protection Act 2018. Their activities are subject to oversight by bodies such as the Information Commissioner’s Office and, where appropriate, the courts. Moreover, the use of live facial recognition by police has already been subject to significant judicial scrutiny. The courts have made it clear that deployments must be proportionate and transparent, and accompanied by appropriate safeguards. That jurisprudence has helped shape operational guidance and policing practice in this area.
Given that context, I question whether it is wise for Parliament to impose a sweeping statutory ban in relation to one database. Doing so risks pre-empting the careful regulatory balance that is already evolving through legislation, oversight and case law. That does not mean that the concerns raised by the amendment should be dismissed—far from it. The growth of biometric technologies demands a clear and robust legislative framework. Many Members across this House have rightly called for greater clarity about how facial recognition should be governed in the future. I feel the same. Questions of transparency, accountability, accuracy and bias must continue to be examined with great care.
However, those broader questions should be addressed through a comprehensive approach to biometric governance rather than through a single amendment targeting one database in isolation. If Parliament concludes that additional statutory safeguards are required for facial recognition technology then we should consider them holistically, ensuring that any rules are consistent, proportionate and grounded in operational reality. A piecemeal prohibition risks creating unintended consequences while failing to resolve the underlying policy debate.
For those reasons, while I commend the spirit in which the amendment has been brought forward, I regret that I cannot support it. Instead, I hope that the House will continue the broader necessary conversation about how facial recognition technologies should be regulated, ensuring that we protect civil liberties and the ability of our police to keep our communities safe.
Lord Hanson of Flint (Lab)
My Lords, this has been a useful debate. I am grateful to the noble Baroness, Lady Doocey, for tabling the amendment, and to the noble Lord, Lord Strasburger, and the noble Baroness, Lady Fox, for speaking in support of it. I am grateful for the comments of the noble Lord, Lord Davies of Gower, which echo some of the points that I will make. The noble Lord, Lord Pannick, pointed to one of the arguments that I will make: that access to the data will be subject to a statutory code of practice to ensure that its use is appropriate.
I remind noble Lords of the purpose of Clause 154: it is simply about bringing legislation up to date, which is what I said in Committee when we debated this matter. As a result of technical changes to the way police and law enforcement access driving licence data, it has become clear that we need to improve the DVLA data access regime by setting out clearly in statute—which is what Clause 154 does—which persons can access DVLA driving licence data. The legislation provides additional clarity on this issue.
The measure will enable us, through secondary legislation made under these new powers—this goes to the point made by the noble Lord, Lord Pannick—to expand the purposes for which DVLA data may be accessed automatically to include policing or law enforcement purposes. This means that the police will have another tool to cut crime and keep the public safe, in line with the commitment by chief officers to pursue all reasonable lines of inquiry when investigating an offence. I emphasise that access to the data will be subject to a statutory code of practice to ensure that its use is appropriate.
We are clear that there will be strong safeguards around the use of DVLA data, which, as I have said, will be introduced via regulations made under the new provisions. We debated earlier government Amendment 382, which ensures that these regulations are subject to the affirmative procedure in both Houses, in line with a recommendation from the Constitution Committee.
We want to ensure that officers undergo training prior to being able to access information. The police are already legally required to consult with local communities. Extensive audits of who has accessed DVLA driving licence data are maintained. It is already standard practice that each time the DVLA driver database is accessed by a police officer, the details of what information is accessed and for what purpose is logged. This will continue to be the case once the revised measure is implemented.
On the issue of facial recognition technology, I want to make it clear to all noble Lords who have signed this amendment, including the noble Baroness, Lady Doocey, that police forces do not conduct biometric facial recognition searches against images contained on the DVLA database. Officers use the DVLA database for day-to-day policing matters. Anybody who has watched a police programme on a Monday night—when they get the opportunity in the recess to do so—will have at some point seen a police officer pull over a car and look at an individual who says, “I haven’t got my licence with me”, and tell them they are Jimmy Jones of X address. The police officer then wants to check that they are Jimmy Jones of X address, and so they access the DVLA database. Nine times out of 10, on the police shows that I watch on a Monday night during recess, it is a false name, and therefore there is police action accordingly. That is the purpose for which the police currently use the database.
As I said in our earlier debate on Amendment 374, the use of facial recognition technology in all circumstances is currently subject to safeguards, such as the Human Rights Act and the Data Protection Act. As I have said in previous discussions, any use of facial recognition technology will be subject to the outcome of the consultation that we finished on 10 February. That will be completed in about 12 weeks and, by the summer, we will have government proposals which the noble Baroness, along with both Houses of Parliament, can scrutinise, to achieve some view on whatever the Government propose following the outcome of that consultation.
I agree with the noble Lord, Lord Davies of Gower, that, if the amendment were agreed by the Government tonight then the police officer who stopped somebody on the street—potentially a drunk driver, an unlicensed driver or a driver with no insurance—would not be able to access the DVLA database. That goes to the very points that the noble Lord, Lord Hogan-Howe, made in his speech.
This is not about mass surveillance. It is about using the DVLA database in an appropriate way—logged, recorded and monitored by the police to ensure that we check that person A is actually the right person who can drive that vehicle at that particular time. It is not, with due respect to noble Lords, mass surveillance. It is proper use of police technology to ensure that the DVLA database helps catch bad actors in the act of doing bad things. I hope the noble Baroness will withdraw her amendment.
Lord Lebedev (CB)
My Lords, I will not take much of your time. First, I fully respect and acknowledge the arguments made by the noble Baroness, Lady Lawrence, which I feel have been addressed very well from the other side of the House. I support Amendment 387B and endorse the arguments made by noble Lords, including the noble Lord, Lord Young of Acton, in favour of this amendment.
Last July, I was able to raise the widespread concerns so many of us have about non-crime hate incidents—NCHIs—in a short debate in this House. I was encouraged by the widespread support across parties for a robust stance in defence of free speech. Many noble Lords outlined how pernicious NCHIs are. I was grateful to the Minister for his thoughtful engagement on the arguments.
Since that debate, there has been a welcome retreat from the use of NCHIs, with the Metropolitan Police Commissioner and others recognising the inappropriateness of using valuable police time to harass individuals for exercising their right to free speech. Like the noble Lord, Lord Young, I am pleased that police leaders and Ministers now recognise that recording the names of citizens on police databases for actions which are not crimes should be curtailed. That is customary good practice, but it is, in this case, not enough.
We need to ensure that there is appropriate statutory protection for free speech, and we need to ensure that past expressions of opinion, which may have been recorded under a previous regime, cannot be used to blight the future of citizens. Amendment 387B would not only wipe clean the slate but affirm the importance of free speech, the foundational freedom on which all others depend. I commend it to the House.
Lord Davies of Gower (Con)
My Lords, it is a pleasure to follow so many excellent speeches from noble Lords across the House who recognise the problems that non-crime hate incidents have caused. I am very pleased to see that there is much agreement on this matter, and I am particularly grateful to the noble Lord, Lord Herbert of South Downs, for his update, as it were. I am also particularly grateful to the noble Baroness, Lady Lawrence, for her very important intervention.
Like many of my noble friends and many noble Lords around the House, I fully support Amendment 387B tabled by my noble friend Lord Young of Acton and the noble Lords, Lord Strasburger and Lord Hogan-Howe. The amendment would bring about the abolition of the category of so-called non-crime hate incidents. If this were to become the law of the land, NCHIs would be permanently dead. Their recording and retention would end, and we could finally put this well-intentioned but ultimately damaging experiment to bed.
We have had many debates during the passage of the Bill about the various tenets of hate crime laws and aggravating factors based on hostility. Indeed, only last Wednesday, the Government were successful in expanding their enormous web of legislation even further, despite our best efforts to stop them. We have lost that battle for now, but I reiterate my opposition to those provisions. While related to the debate we had last Wednesday, the matter before us now is rather different. Non-crime hate incidents are not hate crimes; they are something quite different. They represent the recording by police of incidents that are not crimes at all.
The House will have heard the background to NCHIs from other noble Lords, so I will not repeat that, but their establishment in 2014 via guidance issued by the College of Policing was motivated by sincere intentions. They were supposed to assist police in identifying patterns of hostility in communities that might escalate into criminal behaviour, and that objective was understandable, but in practice, the policy has drifted far beyond that limited purpose. We now find ourselves in a position where individuals can have a police record created about them for conduct that is entirely lawful, simply because another person perceives it to have been motivated by hostility. That is a very serious matter indeed.
The threshold for the recording of these incidents is ridiculously low. A person needs only to be concerned by another’s conduct in order for them to report such conduct to the police for recording as an NCHI.
The matter has quite rightly received serious scrutiny in recent years, and I particularly want to reference the independent review conducted by the College of Policing and led by my noble friend Lord Herbert of South Downs into the use of non-crime hate incidents. The review acknowledged a number of very significant concerns, and it recognised that the recording of such incidents had in some cases created a chilling effect on free expression. It also identified problems with the threshold for recording and the potential for disproportionate interference in the lives of individuals who had committed no crime.
The review led to revised guidance from the College of Policing intended to raise the threshold for recording NCHIs and better protect freedom of expression. I welcome that effort. It was a step in the right direction.
The review also demonstrated something more fundamental—that the concept itself is deeply problematic. We have seen, over the years, a number of examples where the recording of non-crime hate incidents has been plainly vexatious, trivial or disproportionate. In one widely reported case, a former police officer found himself the subject of a non-crime hate incident after engaging in a debate on social media about gender identity. There are several examples that have been given in the debate, so I shall not provide further evidence. There have been cases where individuals have had police records created simply for sharing satirical material online, expressing controversial opinions or engaging in perfectly lawful political debate. We should pause and consider what this means in practice.
In some circumstances, such records may be disclosed during enhanced background checks conducted by the Disclosure and Barring Service. That means that an allegation about a non-criminal matter could potentially affect a person’s employment prospects, particularly in professions involving children or vulnerable adults. There have been documented cases where individuals have feared precisely that outcome.
I also recall the remarks of Ministers during our Committee debates, in which the Government acknowledged the importance of protecting free speech in this area, and the Home Office has repeatedly recognised the need to strike the right balance. Indeed, the Home Secretary herself has spoken publicly about the importance of ensuring that policing does not stray into the regulation of lawful expression. She has emphasised that police officers must focus on real crime and genuine threats to public safety. I agree with those sentiments, but I suggest that the time has come to move beyond incremental reform. The fundamental difficulty is that the concept of a non-crime hate incident places the police in the position of adjudicating perceived hostility in circumstances where no law has been broken. That is an uncomfortable and inappropriate role for the police service.
I put on record my thanks to the Minister for making the time to meet us and to the College of Policing for the briefing it gave on its plans for the future recording of such incidents. It was helpful of the Minister to set out some of that when we opened.
As my noble friend Lord Young of Acton said, the proposals by the college are certainly welcome. It has been clear that NCHIs will not exist any more and that any incident where hostility is a motivating factor will now be recorded as an ASB incident. Critically, these will not be disclosed in enhanced DBS checks. The college has also said that it will be providing updated guidance and training to clarify the higher standards of proof required for the recording of such incidents, and a new triaging method.
This is all welcome, but that does not mean that all is perfect. I still have some concerns and will briefly outline them. My first concern is that, if the abolition of NCHIs is not embedded in statute, there is the possibility of them being brought back to life in the future. All it would take is a change in Home Secretary, or a new Prime Minister, who could reintroduce them by the back door. If all we have is guidance, there is no legal safeguard to prevent them returning. I would feel much more comfortable knowing that they are gone for good and will never be resurrected from the dead.
Secondly, it must be explicitly acknowledged that any guidance produced by the College of Policing about the future recording of incidents will have freedom of expression at its heart. If this had been the case when the NCHI regime was created, we might not have seen as many unintended consequences. It is a fairly basic requirement, which is why I am pleased that my noble friend has included that in his amendment.
Thirdly, the issue of historic NCHI recordings needs to be addressed. Given that the Government have now agreed to abolish them, it does not seem right that thousands will still exist and may very well be disclosed in enhanced DBS checks. That is a matter of fairness. Individuals should not carry the burden of a police record relating to conduct that was never a crime in the first place. That has now been acknowledged as a mistake.
However, like my noble friend, I appreciate the point made by the College of Policing: that to require their deletion within a few months, as the original amendment sought, would be a highly labour-intensive process. If our purpose is to prevent the police wasting time and allow them to do their job, requiring them to sit down and trawl through every single file does not make sense. However, where NCHI recordings are discovered, they should be deleted and they most certainly should not be disclosed. It is sensible to have the guarantee in statute.
The college and the Government have made commendable progress and I reiterate that I am genuinely pleased at the direction of travel. However, we still need some guardrails. That is why we on these Benches believe that there must be a provision in legislation to ensure that NCHIs are gone, that they do not return and that the new regime is more transparent, reasonable and respectful of freedom of expression. For that reason, I very much support Amendment 378B and, if my noble friend does press it to a Division, we will follow him into the Content Lobby.
Lord Hanson of Flint (Lab)
I am grateful for the discussion and, in winding up this debate, I put on record my thanks to Sir Andy Marsh of the College of Policing for the work he has done on this exercise of examining non-crime hate incidents. I remind the House that we are here today with the amendments I have tabled and with the outline that I have given from the College of Policing response, which the chair of the College of Policing has also endorsed. We are here today because the then Home Secretary, my right honourable friend Yvette Cooper, commissioned that review and asked for a report to be produced. That is why we are here today: we have taken action.
I listened with great interest to the noble Lord, Lord Fuller, talking about his experiences. That was not the responsibility of this Government. We are trying to change that regime. I say to the noble Lord, Lord Young of Acton, that we are trying to change that regime. I say to all noble Lords who spoke that we are trying to change that regime. However, I say to my noble friend Lady Lawrence of Clarendon that, in doing so, we want to ensure that we keep the essence of what that regime was established for: to identify precisely the issues that she mentioned in her very powerful contribution. The intent—to gather information, to prevent crime, to understand tensions, to look at potential areas where tensions could arise, to support investigations and to safeguard the vulnerable—remains as relevant today as it did 30 years ago.
I say to the noble Lords, Lord Lebedev, Lord Fuller, Lord Young of Acton, and the noble Baroness, Lady Fox of Buckley, who have spoken on this issue, that we understand the issue. However, I hope that we are making some movement to address the concerns, at the same time as keeping the essence of why those non-crime hate incidents needed to be recorded in the first place, and to have the revisions that the College of Policing have brought forward. Once they are endorsed, we will look at how we put those into practice in due course. I hope that will help both the noble Baroness, Lady Brinton, and the noble Lord, Lord Strasburger.