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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My Amendment 114E relates to the disclosure of non-crime hate incidents in response to a request for an enhanced criminal records check. Noble Lords will be clear, I am sure, that the question of recording these incidents is a wholly separate matter from their disclosure in response to the criminal record check. The government case on this point—if I may anticipate what my noble friend will say—seems to be that statutory guidance already covers disclosure and is more or less adequate the way it stands.
That is not entirely the case; not everyone is convinced. I will take a modest example. In arguments before the Court of the Appeal in the recent Miller case, counsel for the College of Policing said clearly that their client, the college, took the view that there were circumstances in which it would have been appropriate for the relevant police force to disclose this non-crime hate incident if Mr Miller had applied for certain jobs, for example working with transgender children. But of course the state of affairs today is such that any child is potentially a transgender child, so they were saying, effectively, that he would have been barred—because of the fluidity of a child’s decision-making about their gender—from working with children, because of this tweet that was objected to but which the court did not entirely agree should come under this restriction.
So, if the Government are not minded to adopt my suggestion in Amendment 114E, there is, at the very least, a strong case for them to review the existing statutory guidance to ensure that it is fully in line with the findings of the Court of Appeal—and on that matter again I would be very grateful for an assurance from my noble friend.
Amendment 109D, in the name of my noble friend Lord Blencathra, is one I have general sympathy with, but the noble Lord can surely make the case for it much better than I can, so I shall pass on. Perhaps I may make a helpful suggestion. It used to be the case—perhaps it still is—that a very large number of
complaints that reach police forces are purportedly about fraud. A little while ago, to help police forces manage these complaints, many of which are not about fraud at all, the Home Office set up a central unit, Action Fraud, to which the complaints are referred before they are investigated, so that more expert eyes can look at them and, if they have substance, refer them back to the relevant police force for investigation. This is a model that perhaps could be applied to non-crime hate incidents. Again, I do not expect a commitment today from my noble friend, but something of this sort could make the system a great deal less variable and uncertain, which is one of the problems that afflicts it at the moment. Again, I would be grateful to hear anything the Minister might have to say on that.
Finally, before I sit down, I will ask my noble friend, when she wraps up, to answer two questions. First, will the Home Office ensure that the College of Policing ceases the practice set out in its current guidance, so that no more incidents are recorded while the new guidance is pending? Alternatively, what does the Minister envisage for this period, when we are waiting for the new guidance? Secondly, when the new guidance comes into effect—presumably with different criteria from the current guidance—what will happen to existing historic cases of non-crime hate incident records? Will they be retained as they are, will they be extinguished or will they be reviewed and modified in the light of the new guidance?