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

Lord Sandhurst Excerpts

Wednesday 26th April 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I begin by acknowledging that non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech. I am grateful to all those who expressed their views on this topic during the passage of the Police, Crime, Sentencing and Courts Act 2022. The Government fully understand the strength of feeling on this matter, both within this House and among the public more widely, which is precisely why we laid this code before Parliament on 13 March.

Let me first explain that the collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm. In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur. 

This Government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record. This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address.

Free speech is a cornerstone of our democracy. This code addresses concerns that those who express views which some consider offensive but are not against the law are at risk of becoming the subject of a non- crime hate incident report, and that this may result in their personal data being stored on a policing record. It addresses those concerns by introducing new safeguards to ensure that personal data may be included in a non-crime hate incident record only if the event is clearly motivated by intentional hostility and where there is a real risk of escalation causing significant harm or a criminal offence.

To be recorded as a non-crime hate incident or NCHI, the police must judge that any perception of hostility is valid; the complaint must not be irrational, trivial or malicious. This will ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, and not simply because someone is offended. The code also provides detailed guidance on freedom of expression. Clear case studies to illustrate how this fundamental right should be considered in practice by the police are also set out.

We are confident that the content of the code fully reflects the Court of Appeal’s judgment in the case of Harry Miller v College of Policing, which was handed down in December 2021. The court found that the recording of these incidents is lawful but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have mentioned, this is exactly what the code provides. I particularly thank the National Police Chiefs’ Council, the College of Policing and senior police officers, who have engaged with Home Office officials throughout the drafting process to ensure that this code will work from an operational standpoint.

The College of Policing is also currently updating operational guidance for police on the recording of such incidents to ensure this guidance aligns with the new code. The college will also roll out the requisite training for police officers to ensure that the principles within the code are fully understood and embedded within everyday policing practice. This will ensure that the code is applied consistently by forces across England and Wales.

To reiterate, by taking these steps, we are protecting the vital changes that have been implemented by policing since the Stephen Lawrence inquiry. We continue to recognise the need to record intelligence that enables the police to intervene to prevent serious harms and future crimes, and we are determined to support the police in protecting the public. However, we have listened to the concerns raised in relation to the fact that this recording has at times gone too far, and we have acted on them. This code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while still ensuring that vulnerable individuals and communities continue to be safeguarded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. With that, I commend the draft code to the Committee and beg to move.

[Lord Sandhurst (Con)]

My Lords, I must begin by acknowledging the role of my noble friend Lord Moylan, who sadly cannot speak in this debate today. My noble friend moved amendments, which I supported, to the then Police, Crime, Sentencing and Courts Bill in the autumn of 2020. We sought to make the Secretary of State responsible for determining five things in particular: first, the basis on which the record of the incident is to be kept; secondly, how those sensitive records are to be kept; thirdly, for how long they are to be kept; fourthly, what provisions there would be for review; and, fifthly, to whom and on what basis the information on them might be disclosed.

I remind the Committee that, until now, there has been no formal basis to ensure a proper system for selecting and recording what is to be logged, what personal data are to be kept, or when, if ever, the matter is to be reviewed. Nor was there any consistent basis as to when the subject would be given the opportunity, if at all, to respond. This code of practice, made pursuant to what is now the Act, is therefore the first such code of practice on this important matter. Having read it with care, I commend it to the Committee and believe we should approve it. It addresses all our core points and it is good to have it on a proper statutory basis.

Looking forward, however, there are a number of things. We must keep the code of practice’s application under review. I understand that the number of reports which are now on record runs well into six figures—a very large number. Remember that the subjects have committed no crime, but in many cases their names have been recorded and remain recorded.