Police, Crime, Sentencing and Courts Bill

Lord Sandhurst Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, it is a privilege to follow and support my noble friend Lord Moylan. If this speech is a little bit longer than I originally intended, it is to cover some of the ground that I understand would have been covered by the noble Lord, Lord Macdonald of River Glaven.

Making non-crime hate records has real-life consequences for an individual that are too important to be left unregulated. As we have heard, non-crime hate records are kept when no crime has been committed but the police decide that they have grounds for concern about how that person might behave in the future. Once such a record is made, it can remain for ever, without review. It will be disclosed in an enhanced criminal record request. It does not take George Orwell to show where that can lead. I suggest Sir Robert Peel would have been astonished.

I turn to the real-life case of Harry Miller of Lincolnshire. In 2018 and 2019, he posted tweets about transgender issues on Twitter. He holds gender-critical views but denies being prejudiced against transgender people. To quote from the judgment in the subsequent judicial review:

“He regards himself as taking part in the ongoing debate about reform of the law”.


Mrs B, a transgender woman, read the tweets and regarded them as transphobic. She reported them to Humberside Police, which recorded this as a non-crime hate incident. She was the only person to complain. A police officer visited Mr Miller at work to speak to him—in his workplace—about these tweets and left Mr Miller with the impression that he might be prosecuted if he continued such tweeting. In a subsequent press statement, an assistant chief constable raised the possibility of criminal proceedings if matters escalated. Imagine what that felt like for Mr Miller. He, however, applied for judicial review.

Mr Justice Julian Knowles, in a very fine and lengthy judgment, found that the police’s action towards Mr Miller disproportionately interfered with his right of freedom of expression. He reminded us that free speech is an essential component of democracy and of these words in the unpublished introduction to Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”


As the judge stressed, true free speech includes

“the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.”

On the facts, the judge concluded that the tweets were lawful and there was not the slightest risk that Mr Miller would commit a criminal offence by continuing to tweet. That is the judgment in the High Court. Further, he said the police visit to the place of work, coupled with the subsequent press statement, combined to create a disproportionate interference with Mr Miller’s right of freedom of expression. He found that this had a potential chilling effect.

Therefore, the police should not continue to record non-criminal speech without proper oversight—that is what we ask. There must be clear criteria applied by all police forces uniformly. At present, the College of Policing lays down guidelines, but they are no more than guidelines: a police force is free, in principle, to depart from the guidelines. Indeed, the current guidelines state that:

“The recording system for local recording of non-crime hate incidents varies according to local force policy.”


That is not acceptable. These records, by definition, are of a non-crime; they are subject to no time limits; and the guidelines do not provide for mandatory periodic review, whether after one year, five years or 20 years. This is too important to be left to varying and uncertain police practice. Policy and practice in this field cannot properly be left to the wide discretion of different police forces. It should be for the Secretary of State, answerable to Parliament, to decide when, if at all, and in what circumstances and how such records may be made and kept.

A person’s reputation is of inestimable value. If a confidential record is made that he or she has spoken or behaved in a way that someone else has perceived to be motivated by hostility but which does not amount to a crime, that individual becomes a marked man or woman when a request is made by a current or prospective employer for an enhanced Disclosure and Barring Service check. As matters stand, that mark or stain can remain for ever, so what is at stake is very serious. This amendment will ensure that regulations set a definitive framework to ensure fairness; to ensure a consistent and fair process of selecting and recording personal data, identifying the different categories of personal data and its processing, identifying the persons whose authority is required for such processing, ensuring they are of suitable rank, the notification of the individual who is the data subject, how long the data may be retained and with what reviews. If someone is to be denied employment, we must be confident that the basis for this is sound and properly managed.

We have heard from my noble friend that the provisions will not apply to the processing of information pursuant to ongoing criminal investigation, nor for the purposes of administrative functions of the police authority. There will be no interference with operational policing. These amendments are needed to ensure that freedom of speech and opinion is not subjected, as the European court has said, to the heckler’s veto, and to create a proper balance between public safety, freedom of speech and protection of reputation.

Assisted Dying Bill [HL]

Lord Sandhurst Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I begin with praise for the speech of my noble friend Lady Davidson, even though I take a different view on the Bill. For one who is new to this House, it is a heavy responsibility to speak on so important a debate. Like others, I received many compelling letters and emails putting both sides of the case. We have heard many powerful speeches, but I am clear in my own mind as to where we should be going. I say that even though I am deeply troubled that people with horrible illnesses still die in pain, but this Bill is not the answer.

I am conscious that the Bill is likely to proceed beyond today, so I will highlight some important points of practice. Clause 3 stresses three critical hurdles: the capacity of the individual; that the individual has a clear and settled wish; and whether the individual is terminally ill. That last, we know, is often difficult to determine.

Judicial oversight must be effective and real, and I have great confidence in the judges of this country, but their task will be difficult. That oversight must extend not only to the first two things I have mentioned but, importantly, to the doctor’s certificate that someone is terminally ill; that must be open to review. It is an important precondition of going ahead.

How will the hearing proceed? English judges are not inquisitorial. Who will identify what evidence is not before the court and what has not been deployed? How will the court test for matters that lie below the waterline? Will there be counsel to the court? If so, who will pay for it? Finally, Clause 5 gives a right to conscientious objections. It is not clear to me whether this applies to the judges. I would be very unhappy if it did, but it should be made clear.

Moving to the substance, I make these points. Medical ethical issues are serious and, I think, unattractive. Doctors will be compromised. I will not repeat, but I adopt, what several noble Lords have said—in particular, the noble Lord, Lord McColl, the noble Baroness, Lady Stroud, and the noble and gallant Lord, Lord Stirrup. I hope my brevity in this respect will not be misconstrued.

Society will change for ever, attitudes to life will be changed; there will be no return. The dangers to the vulnerable highlighted by many are too significant to be ignored. Our present condition is of course imperfect, but this Bill is not the answer.