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.
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