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

Earl of Leicester Excerpts

Wednesday 26th April 2023 Grand Committee

[Lord Strathcarron (Con)]

My Lords, I too pay tribute to my noble friend Lord Moylan for tabling the amendments that have enabled the Home Secretary to issue this new draft code. I repeat how much he regrets being unable to be with us today.

The need for reform of non-crime hate incidents is clear on many levels, one of which is that an estimated quarter of a million of these have been recorded, which works out at about 70 a day. One can only imagine the amount of non-crime police time this has used up. It is worth remembering that nothing illegal has been done during all this police time. The police have taken it upon themselves to monitor our thoughts and opinions, and if they do not like what they find they record against us. This is no trivial matter, as recordings will show up in DBS checks in perpetuity.

This use of resources was first highlighted when Amber Rudd, then Home Secretary, was reported by an Oxford professor for something she said during the Conservative Party conference. But I suspect what really brought everyone to horrified attention were the NCHIs recorded against four young schoolboys in Wakefield, one of them autistic, for accidentally dropping and scuffing a Koran, even though the head teacher found that there was no evidence of any malicious intent. The publicity around this case also brought to light the fact that NCHIs, unlike actual crimes, will not automatically be deleted from the young boys’ records when they reach the age of 18.

Not content with issuing non-crime hate incidents against the schoolboys, we then saw the chief constable appearing to promote the idea of blasphemy law and the public humiliation of the autistic boy’s mother. This is where we find ourselves when we start to police hurt feelings and not crime. So, while I very much welcome this new draft code of practice, my welcome comes with alarm bells ringing about the College of Policing’s reaction to it. It is worth remembering that the whole programme was an invention of the college in 2014 and that it has resisted every attempt at reform ever since, even spending an estimated £350,000 losing a Court of Appeal case against an ex-policeman who had been anonymously denounced for legally tweeting his opinion. At the end of the case, Mr Justice Knowles compared the police’s action to the Cheka, the Gestapo and the Stasi, and reminded the court:

“We have never lived in an Orwellian society”.


Now we have both the Home Office’s draft code of practice and the College of Policing’s interpretation of it, which raises the obvious question of why they are interpreting it at all. Surely, the intention of the Home Office was for this new code of practice to be adopted by the college as its operational guidance, not interpreted in its own way. This matters because the police act on guidance from the College of Policing and not on instruction from the Home Office.

The Home Office provides clear definitions of what constitutes a hate incident, including the requirement that there must be evidence of hostility and not just a vague and often anonymous impression that there has been some hostility. It also focuses on criminality, emphasising that not all incidents that may be perceived as offensive or hurtful should automatically be recorded. Importantly, it also clarifies how the data should be integrated into UK GDPR. To support all these clarifications, it provides 11 case studies as examples of how the new code would work in practice, predicting, as far as possible, real-life experiences that might be faced by officers. So far, so good. In fact, Stephen Watson, the Chief Constable of Greater Manchester, welcomed the guidance, saying:

“It is not automatically unlawful to say or do things which can be unpleasant, hurtful, distasteful or offensive. This guidance is replete with sensible provisions to safeguard victims of hate crime and better distinguishes between that which should involve the police and that which, in a free country, should emphatically not”.


As I said, so far, so good, but then comes the College of Policing’s interpretation of what the Home Office intended. In the Home Office’s code, these 11 examples recommended that in 63% of cases the police are explicitly advised not to record the hate incidents. In its interpretation, the college provides just eight examples and if their advice is followed, only 12.5% would not be recorded. In other words, we will be going back to the status quo ante if the police adopt the existing college code of practice, part of which has already been declared illegal by the Court of Appeal as it disproportionately interfered with free expression. The conclusion can only be that the college clearly believes that there should be stricter limits on free speech than Parliament has voted for, and so has invented new limits for itself and imposed them on us.

Quite why the College of Policing has become a law unto itself is unclear. Recently, it made headlines when it urged 43 different forces to decolonise their training materials and advised them to introduce gender-neutral facilities and become Stonewall champions to make themselves more attractive to transgender applicants, even though the most recent census showed that only 0.6% of the population is transgender. Meanwhile, the police in England and Wales last year solved just 5% of burglaries. No wonder the public are disillusioned with policing and could easily feel that everything seems to be policed except crime.

In conclusion, we should insist that the College of Policing follows the Home Office code in particular and, beyond that, concentrates far more on preventing and solving actual crime. I also suggest that the time is right for an inquiry into the college’s purpose and effectiveness, but that is for another time.

[The Earl of Leicester (Con)]

My Lords, I too commend the draft code of practice. The Home Office team has done an excellent job on it. My concern, like that of my noble friend Lord Strathcarron, is to do with the interpretation of the code of practice by the College of Policing.

To add further to what my noble friend was saying, seven of the eight scenarios in the College of Policing’s new guidance, its authorised professional practice, were found in the old guidance, which the Court of Appeal, in the Miller case, subsequently found to be unconstitutional because it had a chilling effect on freedom of speech. The police will not be schooled in the Home Office guidance once the college’s APP comes out; they will be schooled in the guidance given by the College of Policing. This means that we will be exactly where we were before.

The Home Secretary’s intention could not have been clearer—she wants officers to stop policing our tweets and start policing the streets—but the College of Policing now seems determined to thwart her. I ask the Minister whether the College of Policing is allowed to do this and, if so, what he and the Home Office can do to make it follow the guidance. Will they review the college’s own APP now that it is out and make sure that the college redoes it? Paragraph 11.2 of the Explanatory Memorandum sets this out very clearly:

“As set out in paragraph 6.2, operational guidance (known as APP) relating to the recording and retention of NCHIs is published by the College of Policing. An updated version will be produced when the code is approved by Parliament”.


I assume we are doing that today. It continues:

“This operational guidance will ensure that the principles provided by the NCHI Code are operationalised, thus creating consistency across all polices forces in England and Wales”.


I hope that the College of Policing will be required to do that.

I have a point to add on training. Following a freedom of information request to police forces in England and Wales on how many had conducted training on free speech, 78% of the police forces that responded said that they had done no training on Article 10 of the European Convention on Human Rights or on the free speech protections in our own common law. Conversely, 56% of the responding police forces said that equality, diversity and inclusion training was inextricably embedded in their training.

I absolutely commend this Government’s recruitment of 20,000 new police officers, which was a pledge made by Prime Minister Johnson a number of years ago, but it adds to the training issue. I understand that 38% of police officers have had less than five years of service. Training in freedom of speech is a real issue for the Home Office to address because it is really important that police officers understand how important it is to uphold the foundational values of freedom of expression in the democratic and liberal society in which we live.

[Lord Jackson of Peterborough (Con)]

My Lords, at the outset, I declare my interests as in the register. I am a member of the British Transport Police Authority but, for the avoidance of doubt, none of my comments is aimed at the British Transport Police, its officers or the authority.

I welcome this draft code of practice which, as we know, was legislated for in the Police, Crime, Sentencing and Courts Act 2022. I too pay tribute to my noble friend Lord Moylan for his single-mindedness and persistence in pursuing this issue.

I was brought up in south-east London. I can absolutely understand the horror as a result of the tragic murder of Stephen Lawrence. The Macpherson inquiry was needed at the time. I sincerely believe that we have made huge progress in the way we treat all our citizens. Although the Metropolitan Police has had its issues recently, we have come a long way since that tragedy in 1993.

Statement of Changes in Immigration Rules

Earl of Leicester Excerpts

Wednesday 19th October 2022 Lords Chamber

To paraphrase the noble Lord, Lord Horam, I think he said he did not like the way the lawyers got in on the act or judicial review and all that. Surely, it is one of the safeguards in a democracy that we have the rule of law and that lawyers can challenge government decisions. It may be a nuisance for Governments, but surely judicial review is one of the important safeguards. We as a country still believe in the rule of law; I hope we will go on doing so, whatever changes there are in government Ministers, Home Secretaries or whatever.

[The Earl of Leicester (Con)]

My Lords, I add my support to the Government and the aims and objectives of this immigration statement of 11 May. Respectfully, I do not support the regret Motion tabled by the noble Lord, Lord Hylton. I found it very interesting to listen to the arguments of my noble friends Lord Horam and Lord Lilley, with which I agree.

Of course I empathise with the terrified people whose desperation is so great that they risk their lives, and their families’ lives, to seek a safe refuge. This is an unimaginable position for anyone. However, I also accept that something effective must be done at our borders to stop criminals intent on abusing these fears and risking people’s lives. It cannot be right that a country such as ours, which stands proudly for protecting the vulnerable, standing strongly with those who have been wronged and upholding the highest standards of human rights and justice, should at the same time, due to inaction or inefficient action, be facilitating conditions for this injustice to occur.

That is why I support the statement from 11 May and believe it will help with the immigration crisis we face on our shores. The statement has introduced new permissions to stay where a person is granted on a protection route and made a pledge finally to define what “claim for humanitarian protection” means, so people who really need the help most know clearly who they are and their application can be completed swiftly, with the most minimal of delays. A clearer definition for the exceptional circumstances which warrant children coming to join refugee parents or relatives will also provide more transparency and clarity and make it easier for children to join loved ones sooner and more safely.

It also provides some different allowances for when a person comes to the UK via another safe country. I think this is fair enough. Maybe the noble Lord, Lord Dubs, stuttered, but he said that people come through another safe country, and then slightly retracted the comment. We must deter dangerous journeys and encourage asylum claims to be made in the first safe country. Differentiating between people who come here first and people who come via another safe country is important and fair.

I support all these measures and the Government’s other moves on immigration, such as amending criminal offences, with increased maximum penalties for people smugglers and boat skippers, and the ability to impose visa penalties where countries pose a risk to international peace and security, to name but a few. These will ensure that those most at risk and most vulnerable will be welcomed and protected while those who use current loopholes for their own criminal gains and risk other people’s lives in the process are stopped in their tracks. We should get on with this without delay.

[Lord Paddick (LD)]

My Lords, it has been an interesting and wide-ranging debate, bearing in mind the subject of the regret Motion, but we support the regret Motion in the name of the noble Lord, Lord Hylton, and we are very grateful to him for bringing these changes to the attention of the House.

The noble Lord, Lord Hylton, regrets the implementation of plans, set out in the Nationality and Borders Act 2022, to treat refugees differently depending on how they entered the United Kingdom. The issue is yet to be tested in the courts, as it inevitably will be. We maintained at the time, as the noble Lord, Lord Dubs, has said, that it was a breach of the UK’s international obligations under the UN refugee convention—a view supported by the UN High Commissioner for Refugees.

The noble Lord, Lord Lilley, has an interesting perspective on the backlogs in asylum applications. Some 10 or more years ago, we had double the number of asylum applications and a fraction of the backlog. We were deporting far more overstayers and illegal immigrants than we do now. All this points to a catastrophic failure by the Home Office—nothing more, nothing less.

As far as Ukraine is concerned, the Government have been very generous on the basis that they expect and hope that the vast majority of those people will return to Ukraine, once peace has hopefully been restored. It is a very different situation.

I agree with the noble Lord, Lord Lilley, that rather than taking back control of our borders, we have thrown them open. As the noble Baroness, Lady Falkner of Margravine, said, there is nothing now to stop people coming here with visa-free entry, which is not only still open to residents of all EU countries, but the Government have added 10 more countries to that list. These are people who can put their passports in the e-passport gates at the airport, disappear into the country and nobody knows who they are, where they have gone or whether they ever leave.

I am a little confused about the arguments on identity cards. The noble Lord, Lord Dubs, who apparently supports the idea, told us how difficult it is to open a bank account. Tell me about it—I have been trying to open a bank account for the last two weeks. I have shown my passport and I have gone to the bank; it wants to know where my income comes from—most of it is a Metropolitan Police pension. Yet, apparently, we need identity cards as well, to try and control things. I think things are difficult enough as it is.

But we digress, widely. The Minister may argue that our objections were debated during the primary legislation that these rule changes are based on, and the majority of this House rejected those arguments. The specifics—for example, that group 2 refugees will get permission to remain for only what I thought was 30 months but the noble Lord, Lord Hylton, thinks is shorter—were not on the face of the Bill, and this is the first time that Parliament has had the chance to debate the specifics in legislation.

We should not expect details of safe and legal routes to be included in the Immigration Rules, but when refugees are to be treated differently depending on whether they have arrived by a safe and legal route—that is, group 1 refugees—or otherwise as group 2 refugees, Parliament has the right to expect the Government to set out what safe and legal routes are available currently and those that are planned, including any limits on those numbers. Without knowing how many or what proportion of asylum seekers will fall into each group, how can Parliament make a judgment as to whether to agree these changes to the Immigration Rules?

As the noble Lord, Lord Hylton, said, group 2 refugees will be disqualified from family reunion, so we are going to have far more unaccompanied child refugees coming to this country who will not be able to be joined by their families.

This week, the BBC reported that 181 of these unaccompanied asylum-seeking children aged 18 or under have disappeared since they have come to this country. They are put into hotels with no supervision, and they disappear. How many more unaccompanied asylum-seeking children are going to be lost and potentially abused, whether through modern slavery or through child abuse, if they are not allowed to bring their families to join them and look after them? Why is there not a risk assessment around how many more unaccompanied child refugees are going to be placed at risk as a result of these changes?

There is no risk assessment on this at all, but there is precedent in the past for impact assessments to be published alongside changes to the Immigration Rules. In September 2020, the Government published an impact assessment for changes to the Immigration Rules for students. In November 2020, they published an impact assessment for changes to the Immigration Rules for skilled workers. The changes we are debating today are arguably the most fundamental changes to the Immigration Rules ever enacted—so where is the impact assessment?

Nationality and Borders Bill

Earl of Leicester Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Earl Leicester (Con)]

My Lords, we are an island race and have been subject to many waves of immigration and invasion—some welcome, some not. I leave your Lordships to decide into which category they place the Vikings, Romans, Normans and Huguenots. Actually, I think that on the whole, notwithstanding a few short-term difficulties, these have generally been positive. The Huguenots came at the rate of a thousand a year over, say, 50 years. Of course, the population back then was much smaller. In the 18th and 19th centuries, all those Anglo-Saxon-sounding bankers arrived in London, such as the Schroders, Warburgs and Rothschilds. Then, after World War Two, there was the Windrush generation. Incidentally, I am pleased to see that Part 1 of the Bill appears to attempt to right the terrible wrongs of Windrush. I say the above to demonstrate my support for economic immigration. It has been a necessity in our country, but it must be subject to rigorous control, with checks and balances, and it must suit our country.

There are 80 million displaced people in the world, so it is clear that not everyone who wants to come to the United Kingdom can do so. The current system is collapsing. Indeed, in the New Plan for Immigration published in March 2021, the Government described the UK’s in-country asylum case load as being at an “unsustainable” level. It stated that 109,000 asylum cases were in the system; of those, 52,000 were still awaiting a decision at the end of 2020. Some 5,200 had an appeal outstanding, and 41,600 cases were subject to removal action—the highest level since records began in 2011. In 2013-14, this cost the British taxpayer just over £0.4 billion. In 2020-21, it is costing the taxpayer just under £1.4 billion.

The number of decisions made per year has been falling, despite an increase in asylum casework staff. Indeed, there has been a 46% increase in the number of those staff at the Home Office since 2014-15, when there were 409, to 597 four years later. To further compound the situation, productivity has reduced from a peak of around 18 principal stages completed per staff member per month in 2015-16 to an equivalent figure of only seven per month only four years later. There has been much criticism of the Home Office during this debate. These figures add to that criticism, and I add mine. Of the 29,500 applications made in 2020, only 14,400 decisions were made—granted, the pandemic doubtless had some part in this reduction. But, of course, this all adds to pressure on the system.

While successful application rates between 2004 and 2009 averaged 34%, in recent years that has increased and improved to 48%. Compare that to the 20% rate in France—no wonder immigrants do not bother stopping in Paris but head straight for Calais. Indeed, many applications for asylum in the UK come from people who have had their applications in other European countries turned down. But no one arriving in small boats is fleeing persecution in France.

A related problem highlighted by the Home Secretary is that the persistent failure to enforce our immigration laws, as reflected by the woeful removal statistics—I believe it was only about 2,500 last year—is eroding public trust and disadvantaging vulnerable people who need our help. According to Migration Watch, 79% of British voters think that the Government are handling immigration poorly. We are lucky to have the noble Lord, Lord Green of Deddington, president of the independent Migration Watch, here in this Chamber, giving us some hard-hitting facts on the levels of migration in this country.

I welcome the Government’s introduction of much of this Bill. It is high time we dealt more robustly with people trying to access our country illegally. This should allow the Home Office more time to deal more compassionately with more deserving cases and, most importantly of all, to prevent the tragedies of the like we saw in the channel in November.