Police, Crime, Sentencing and Courts Bill

Lord Moylan Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

Moved by

[Lord Moylan]

109C: After Clause 55, in subsection (1), leave out “may” and insert “must”

[Lord Moylan (Con)]

My Lords, I thank my noble friend for being a listening Minister and for the hard work she has put into bringing forward this amendment. She has explained what government Amendment 109B does. Essentially, it brings the guidance under which non-crime hate incident records are made by the police under statutory guidance to be issued by the Secretary of State. That is very welcome, but I have some questions to ask about the amendment and some points to make that appeared in my original amendment but do not figure in Amendment 109B.

The first is my Amendment 109C, which would make it mandatory for the Secretary of State to issue this guidance. That was the sense of the Committee when we debated it: that the Secretary of State should do this, not that the Secretary of State should have the option of doing it. But in the very first line of proposed new subsection (1) “may” appears, which I think should be “must”.

I will make it clear at this point that it is not my intention to press any of my amendments to a Division or to seek the opinion of the House, but I would like to hear my noble friend’s explanation of why “may” is, in her view, an appropriate word here when the sense of the Committee was that it should be “must”. The anxiety is not that the current Secretary of State will fail to issue the code of practice because, quite clearly, having brought forward the amendment it would be very strange if she did not act. The anxiety is that a future Secretary of State could, using “may”, revert to the status quo if they wished because there would be no obligation on them to maintain the code of practice. I would like to hear some assurance from my noble friend, and possibly even a word that she might bring forward this modest change at Third Reading.

My Amendment 109E affirms the importance of freedom of expression, especially in the light of the recent Court of Appeal decision in the Miller case. In the interests of brevity, I will not comment on this amendment further but leave it to more qualified noble Lords who might wish to comment on it after me, because I know that we have a very heavy day.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing her two amendments, which we welcome. It was fair of her to point out the legacy of the recording of non-crime hate incidents and the legacy of the Macpherson report on Stephen Lawrence’s murder. We welcome that the existing guidance will be turned into statutory guidance. I have one question for the Minister: what is the likely timetable for that statutory guidance to be available to be reviewed by Parliament?

On Amendment 114E in the name of the noble Lord, Lord Moylan, I have a genuine question, and this is not a party-political point: how would his amendment have an impact on domestic abuse cases? As I have said before to the House, I sit as a magistrate in both family court and the criminal court, and I deal with a lot of cases related to domestic abuse. While non-hate crime incidents are not recorded on the police national computer, we see information on call-outs and it is common to see information on text records between the parties, usually a man and a woman. Sometimes those text records go on for pages and are relentlessly abusive. How would that information be affected by his amendment?

[Lord Moylan (Con)]

Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to my noble friends for setting out their amendments. I shall respond to them in turn. Amendment 109C seeks to impose a duty on the Home Secretary to issue a code of practice, while our amendment provides her with the power to do so. My noble friend Lord Moylan has pressed me on this issue. I assure the House that we certainly will issue such a code of practice; indeed, Home Office officials will shortly begin the process of drafting the aforementioned code. The permissible language in Amendment 109C is a common drafting approach but, as I have said, it is our firm intention to prepare and issue a code relating to non-crime hate incidents. As I said earlier, I can assure the House that decisions relating to existing non-crime hate incident data will also be made in due course as the process of drafting the new code begins.

My noble friend asked me if the College of Policing would pause the recording of NCHIs, as they are called, while the guidance was being formulated. The current non-statutory guidance on NCHIs will remain in place until the new code of practice enters into effect.

The noble Lord, Lord Ponsonby, asked about the timing of the amendment and when it would come into force. The reason why we have not issued a timescale is that the code will require careful drafting to ensure that it both meets the needs of the police and protects the public. Furthermore, as noble Lords will know, the Court of Appeal has only recently handed down its judgment in the Miller case and the code will have to account for that ruling. We do not wish to impose unduly restrictive timeframes on the process of drafting and publishing a code that will fully align with these objectives.

My noble friend has suggested, previously and again today, that a unit of some description could be set up to provide advice to police forces on whether specific incidents should be investigated by the police force as non-crime hate incidents. That suggestion requires further consideration, and I will try to give it my full consideration in due course.

My noble friend Lord Blencathra raised concerns that the amendments provide that the first iteration of the code is subject to the affirmative procedure, with the negative procedure applying thereafter. This point has been raised by the Delegated Powers and Regulatory Reform Committee, which he chairs so ably; I am sorry that he will be stepping down. We take the committee’s views very seriously. I will set out why we have adopted this approach.

As I have already indicated, in framing the code, we need to ensure that we have given effect to the ruling by the Court of Appeal in the Miller case. By ensuring that the first iteration is subject to the affirmative procedure, we are enabling both Houses expressly to approve the code, thus ensuring that this House can confirm that it is content that the code reflects that judgment.

It is appropriate that further iterations of the code are then subject to the negative procedure. We do not think there will be any further major rulings on the topic of non-crime hate incidents. Any further changes will thus simply reflect the routine need periodically to review such guidance. It would be disproportionate to require the affirmative procedure for every dot and comma change in further future iterations; indeed, the fundamental premise of the code will already have been expressly agreed by Parliament. We therefore do not believe that the affirmative procedure for future iterations would be an effective or necessary use of parliamentary time. I also confirm to my noble friend that we will respond to the DPRRC shortly.

Amendment 109E seeks to incorporate a specific reference to the importance of the right to freedom of expression within the list of matters that may be addressed in the code. When discharging her functions, including preparing this new code of practice, the Home Secretary must already act in compatibility with convention rights; a number of noble Lords rightly asked about this. That includes Article 10, which ensures a right to freedom of expression. It is therefore not necessary to include a reference to the importance of the right to freedom of expression, because this is already a given under the Human Rights Act. None the less, I assure noble Lords that the code will address issues around freedom of expression. Indeed, in my opening remarks, I noted that we will ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Miller case.

Finally, Amendment 114E would prohibit the disclosure of non-crime hate incident personal data on an enhanced criminal record certificate. I cannot support such a blanket prohibition. The noble Lord, Lord Ponsonby, illustrated one of the reasons why. First, non-crime hate incidents are simply one form of police intelligence that sit alongside many others—missing persons data, evidence of anti-social behaviour, unproven allegations of sexual assault and perhaps domestic abuse. They exist in line with the police’s common-law powers to prevent crime and keep the Queen’s peace. There are rightfully circumstances in which police non-conviction information of various kinds will be considered for disclosure in enhanced checks which are used in relation to roles involving close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding purposes.

Secondly, the rules surrounding disclosure of this type of data are already governed by the statutory disclosure guidance produced by the Home Office. The third edition of this guidance came into force on 16 November last year. 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. That is why it is covered in the same statutory guidance. The 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, as such, unnecessary and disproportionate.

[Lord Moylan (Con)]

My Lords, does my noble friend agree that, since the guidance was published before the Court of Appeal decision, the guidance on disclosure should at least be reviewed in the light of the court decision and the reference to “chilling effect”, to ensure that it is fully compatible? Since that was so much part of the debate in the Court of Appeal—not simply recording but also disclosure—would it not make sense to review it?

[Baroness Williams of Trafford (Con)]

My noble friend has jumped the gun on what I was going to say. We are confident that the statutory disclosure guidance, the latest version of which was published on 16 November, sets out clearly the criteria and principles which chief officers must have regard to in making decisions to disclose non-conviction information.

The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information ought to be disclosed in line with the guidance, the applicant is invited to make representations. Should the decision to disclose be confirmed following any representations given, that information will be included on the certificate that is sent to the applicant only. Importantly, the applicant also has a right to appeal that disclosure through the independent monitor, who considers cases where an individual believes that the information disclosed within an enhanced criminal records certificate is either not relevant to the workforce they are applying for or that it ought not to be disclosed.

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[Baroness Williams of Trafford (Con)]

On Report, questions and interventions are generally for points of elucidation and the Back-Bencher will have spoken before the Minister. That aside, in terms of what happens to historic cases, I think that will be determined upon the updating of the guidance. I will write to noble Lords as I think it is an important point as there may be many examples of it. I will write to the noble Baroness and put a copy in the Library because it is an important point of clarification.

Getting back to what I was saying about the safeguards, it is important that they balance the rights of job applicants with those of the vulnerable people they might have contact with. This goes back again to the point made by the noble Lord, Lord Ponsonby. Alongside the existence of this strict statutory disclosure guidance, I can reassure noble Lords further. As I mentioned in the previous debate, 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.

My noble friend has also, helpfully, raised with me before today whether the government amendment may encompass disclosure within its remit by referring to the processing of data. While the Home Secretary’s code will set out the rules for those who process NCHI data, there is no obligation for the code to address every conceivable act of processing. We have been clear that the Government’s intention is to not include disclosure within the code of practice; as such, the issue of disclosure will not be covered or referenced in any way in the code of practice.

It is imperative that we do not set an unhelpful precedent by legislating in such a way as to undermine the police’s ability to build intelligence on possible offending and risk to life more broadly. I stress again the often vital role that this data plays in helping to safeguard the vulnerable. It is not there to enforce correct opinions—referred to by the noble Baroness, Lady Fox—nor is it there to serve a purpose unconnected with policing; rather, it is part of the police’s function to prevent crime.

In conclusion, again, I am most grateful to my noble friend Lord Moylan for raising these important issues. I hope that he can see that the Government have taken him very seriously; the government amendments, together with the assurances that I have given in response to Amendments 109C and 109E, will, I think, address the concerns raised, by bringing parliamentary oversight to this process while protecting fundamental police functions that are already subject to strong safeguards. I hope, therefore, that he will see fit not to press his amendment—he has indicated that he will not—and that he will support the government amendments as drafted. I beg to move.

[Lord Moylan (Con)]

I am grateful to my noble friend, and for her reassurances, and I look forward to seeing the letter that she is going to write to the noble Baroness, Lady Fox of Buckley. I beg leave to withdraw the amendment.

Amendment 109C (to Amendment 109B) withdrawn.