Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Baroness McIntosh of Pickering

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I speak to Amendment 48 tabled in my name and support all those who have spoken in favour of limiting the use of children as CHIS. The reason for putting forward Amendment 48 is to try to probe the thinking of the Government on the relationship between the provisions of the Bill with the UN Convention on the Rights of the Child. How does my noble friend the Minister believe that they can square the use of children as CHIS with the provisions of that convention?

I endorse and support entirely the comments of my noble friend Lord Young of Cookham and I thank him for so eloquently moving his Amendment 43. I congratulate the other noble Lords who supported his amendment. The noble Baroness, Lady Massey, has tabled Amendment 51, which would build on the thinking that I have put forward in my probing amendment about how the UN convention could apply in this regard.

My noble friend Lord Young referred to one of the four general principles that are set out in the UN Convention on the Rights of the Child—Article 3, establishing what is in the best interests of the child. I support that view entirely; it is difficult how using children as covert intelligence sources can be squared as being within the best interests of the child, as opposed to the wider and broader interests of the community. I also have regard to the three other general principles of the UN convention: Article 2, on non-discrimination; Article 6, on the right to life, survival and development; and Article 12, on the right to be heard. In summing up this debate, can my noble friend the Minister indicate how a child’s voice, particularly one who may be as young as 15, in the instances that we are considering, in this part of the Bill, is heard before they are asked to operate as covert human intelligence sources?

I support entirely the comments made by others that children are particularly vulnerable in this regard. They may not understand what is being asked of them. Are they in a position to ask what the implications are for their future, and how their actions might be interpreted? Are they actually in a position where they could refuse to act, if it has been explained to them, when they are being asked to act in a particular way? It is difficult to understand the circumstances in which this might be explained to a child aged 15, 16 or 17—how their conduct might benefit our society, but also how it might be of harm to themselves.

I support this group of amendments. I have tabled Amendment 48 as a probing amendment, because I believe that the provisions of the UN Convention on the Rights of the Child apply here. If that can be achieved by one of the other amendments in this group, I will be extremely happy. I urge my noble friend to put my mind at rest by indicating how what the Government are seeking to do through this Bill by using children as CHIS can be squared with the provisions to which I have referred in the UN convention.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.

Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:

“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,


which has already been quoted by the noble Lord, Lord Young,

“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”

The best interests of the child must be at the core of all our concerns.

The JCHR report concludes:

“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”


The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.

I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.

The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.

I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?

Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.