Crime and Policing Bill

Lord Lebedev Excerpts

Monday 9th March 2026 Lords Chamber

[Baroness Brinton (LD)]

The hour is late and I really do not want to get into a debate about that. The point is that the police are going to have to make whatever the new system is work. My worry is that there seems to be a line now that might exclude cases that are important because of the course of conduct which might become a criminal act.

I did not manage to get quite to the end of my speech. I therefore ask the Minister whether the Government are confident that such a course of conduct under a number of non-crime hate incidents would be visible to the police if the code of practice is repealed and the police stop recording them.

[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.