Crime and Policing Bill

Lord Herbert of South Downs Excerpts

Tuesday 20th January 2026 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, this is already proving to be a crucial debate in the passage of this Bill. I support Amendment 416E, tabled by the noble Lord, Lord Young of Acton. Sadly, my noble friend Lord Strasburger is unable to be with us to support the amendment, which he has signed, but I hope that I reflect his views in speaking today.

Non-crime hate incidents, although born from the well-intentioned Macpherson report in 1993—which the noble Lord, Lord Hogan-Howe, called “an honourable start”—have morphed into a mechanism that frequently harasses and silences legitimate debate. In doing so, they consume prodigious quantities of police time, as we have heard—time that is desperately needed to investigate the crimes that we have discussed throughout Committee. Non-crime hate incidents, which started from benign motivations in 1993, have morphed into an ugly and frequently used technique for harassing and silencing somebody whose views the complainant does not like. In the process, prodigious quantities of police time are being wasted on non-criminal matters, meaning that real crimes that would otherwise be investigated are being ignored.

The seeds of what has gone wrong were sown by the Macpherson inquiry into the murder of Stephen Lawrence. The inquiry concluded that a racist incident should be defined as being

“any incident which is perceived to be racist by the victim or any other person”.

In essence, that means that anyone—whether involved in an incident or not, whether a reasonable person or otherwise—would be able to determine that an incident, no matter how harmless, was racist in nature. The inquiry went on to recommend that

“the term ‘racist incident’ must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment”.

It is remarkable that the inquiry concluded that incidents which are not criminal offences as defined by Parliament should be investigated by the police with equal vigour as those which are criminal offences. That raises fundamental questions about the purpose of the police and what their priorities should be, particularly in a world of potentially limitless demand and highly constrained resource.

Nevertheless, Macpherson’s recommendations relating to racist incidents and their recording were rapidly accepted and implemented by the police and government. Following a 2006 review by Sir Adrian Fulford, a shared definition of hate crimes and non-crime hate incidents was adopted across the criminal justice system, including by the police and the Crown Prosecution Service. This expanded the recording of NCHIs beyond purely racist incidents to cover all those characteristics that are covered by hate crime legislation in England and Wales—race, religion, disability, sexual orientation and gender identity.

Key to the expansion of alleged NCHIs was the creation, in 2014, of the College of Policing’s Hate Crime Operational Guidance for police forces. Perhaps recognising that the guidance was likely to cause grave concerns to many, the College of Policing made a pre-emptive defence of their policy, saying:

“The recording of, and response to, non-crime hate incidents does not have universal support in society. Some people use this as evidence to accuse the police of becoming ‘the thought police’, trying to control what citizens think or believe, rather than what they do”.


The guidance goes on to say, in relation to hate incidents:

“Where any person, including police personnel, reports a hate incident which would not be the primary responsibility of another agency, it must be recorded regardless of whether or not they are the victim, and irrespective of whether there is any evidence to identify the hate element”.


The use of “must” in the guidance leaves no latitude for police discretion or the balancing of rights exercise, which would be necessary in considering the subject’s right to freedom of expression under Article 10.1 of the European Convention on Human Rights.

With the advent of social media, the number of NCHIs being recorded has rocketed. Policy Exchange reported in 2024 that over 13,000 are being logged annually in England and Wales, consuming 60,000 police hours a year. Some keyboard warriors with an axe to grind have made a full-time occupation out of submitting prolific quantities of NCHI complaints with little or no justification. These include a disgraced former policeman who prodigiously exploits the system to frequently harass his political opponents. Some incidents have hit the press, such as when Graham Linehan, the co-creator of “Father Ted”, was arrested on the tarmac at Heathrow over an NCHI.

However, many victims of spurious NCHIs are not even aware that a complaint has been logged against their name. One campaigner found out only when the complainant launched a judicial review of the police’s refusal to take the matter further. As we have heard, the impact of having an unproven NCHI secretly logged against your name can be severe and mean that you are refused a visa to visit certain countries, including America, or that you fail an enhanced DBS check for a job in areas such as education or health.

Freedom of information requests to 43 police forces found zero examples of NCHIs preventing crime. The Metropolitan Police announced last October that it has stopped investigating NCHIs entirely. Last month, the National Police Chiefs’ Council and the College of Policing reported to the Government that NCHIs are “not fit for purpose”.

NCHIs must go. The Minister, the noble Lord, Lord Hanson, stated during our debates on the seventh day in Committee that the College of Policing is reviewing this guidance and that we would see this review before Report. I hope that the Minister can confirm whether that review will address the chilling effect on free speech identified in the Miller judgment and whether he accepts that the police must prioritise actual criminality over the recording of NCHIs.

I support this amendment as a necessary check on the expansion of the surveillance state. When will the Government act to abolish NCHIs? If the Minister cannot answer that question, we will have to return to this matter on Report.

[Lord Herbert of South Downs (Con)]

My Lords, I draw attention to my declaration in the register of interests that I am chair of the College of Policing.

As I said at Second Reading, we need to remember that there were benign reasons for the introduction of this regime over three decades ago; what the noble Lord, Lord Clement-Jones, said in this regard was helpful. The purpose was to ensure that the police would pursue intelligence that could build a pattern of behaviour that would result in harm to an individual. That was the case not just in relation to the dreadful murder of Stephen Lawrence but subsequently in the case of Fiona Pilkington, where a repeated pattern of anti-social behaviour had been ignored. It was not criminal behaviour—it fell below that threshold—but it nevertheless resulted in a tragic loss of life.

Nevertheless, as has been noted, there has been considerable change over that three decades, with the advent of social media, smartphones and a much more contested policy space in many of the areas relating to hate crimes or alleged hate crimes. There is the risk of a number of consequences. Those have been drawn attention to by noble Lords, but they include the chilling effect on free speech, the tying up of resources unnecessarily —I will come to that—and, I suggest, at least as serious, damage to the reputation of the police, if it is perceived that they are prioritising the wrong things and getting themselves involved in matters that they should not be.