Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Baroness Williams of Trafford Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Lord, Lord Paddick, for moving his regret Motion. I pay tribute to my noble friend Lord Haskel, who first alerted your Lordships to this issue. The House is also grateful, not only on this issue but generally, for the work of the Secondary Legislation Scrutiny Committee, which scrutinises every instrument that comes before Parliament. It is able to get into what a particular instrument does and then, by engaging with a Minister and through its reports, bring matters of concern to the attention of the House.

Covert surveillance is an important tool that is used to provide the evidence needed to prevent and detect crime. It is necessary, as there may be no other way to get the intelligence needed. Having said that, we have to have proper codes of practice in place and, where that involves young people under the age of 18—who are still legally children—it is of particular concern and importance. We have to ensure that children’s rights are protected and that there are adequate protections in place to take care of their physical and mental well-being and that proper risk assessment is undertaken.

The regret Motion before us rightly expresses regret that organisations concerned with human rights and the welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months. The Home Office certainly got its presentation of this change wrong. It used terms such as “administrative convenience”, which does nothing to reassure Members that the Government have got the balance right here. What should be of paramount importance is the welfare of the child being used as a covert intelligence source.

As we have heard, this issue was debated in the Moses Room in July—a debate led by my noble friend Lord Haskel—and during that debate I posed a number of questions to the noble Baroness, Lady Williams of Trafford, and I shall pose some more today. I hope she is able to give more reassurance to the House when she responds to the debate shortly.

Can the Minister explain carefully why the decision was taken to extend the term from one month to four months? Can she tell the House how the Government have satisfied themselves that these proposals satisfy Section 1 of the Protection of Children Act 1999 and the Convention on the Rights of the Child, which the United Kingdom ratified in 1991? Can she say how she has satisfied herself that the safeguarding and protection of the children concerned while they work as covert human intelligence sources is delivered? I am sure that she would not have brought this here if she were not personally satisfied.

Moving on to risk assessments, can the Minister tell the House how the rights of the child are protected? Can she outline what specific training or expertise a police officer or other security professional would have in respect of understanding the needs and rights of the child? In what circumstances would it be acceptable for someone who could represent the interests of the young person to not be present during meetings with the handler?

Can the Minister also deal with the issue of consent? How do we make sure that the consent is appropriately understood and given, both where the child’s parents or guardians are informed and in those instances where the parents are not informed or aware of what is happening? Indeed, they could be the people the child is seeking to monitor. The noble and learned Lord, Lord Judge, also raised important points that need answering by the Minister when she responds.

In conclusion, this is a very sensitive and important area of policy affecting vulnerable young people in some very difficult circumstances. It is right that the House uses every device available to it to assure itself that the Government have put the correct and adequate protections in place. Again, I thank both my noble friend Lord Haskel for raising this issue in the first place and the noble Lord, Lord Paddick, for tabling the regret Motion that has enabled us to debate it.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I also thank both the noble Lord, Lord Paddick, for introducing the debate and the noble Lord, Lord Haskel, for his work in bringing this issue to the committee’s attention in the first place. He may think that I am not really thanking him, but I am—it is important for your Lordships’ House to discuss these matters, particularly one such as this which has been in force for the past 18 years and only recently amended ever so slightly.

The debate allows me to both reiterate the importance with which the Government view the safeguarding of those small numbers of young people authorised as covert human intelligence sources and restate the enhanced safeguards that support the juvenile CHIS authorisation framework. We have recently strengthened those safeguards further, as noble Lords have mentioned.

I recognise the concern about the power more broadly, which has been remarked on before not just by me but by other noble Lords. The deployment involved is very small—it is unlikely to reach double figures. However, it is not a new concept. The 2000 order and the various iterations of the CHIS code of practice have governed the use of juvenile CHIS for almost two decades, ensuring that where it is necessary to authorise juveniles as CHIS, an enhanced authorisation and risk assessment is applied. I hope that the debate will assure noble Lords that the existing regime and our amendments to provide a legal framework place the welfare of the CHIS as the primary consideration; the interests of the child have been and will be paramount.

I will start by addressing the question of the noble Lord, Lord Paddick—the noble Lord, Lord Kennedy, asked me a very similar one—on why we have extended the authorisation for the juvenile CHIS from one month to four months and why we are increasing the period between renewals at a point when CHIS are being deployed in increasingly dangerous situations. Secondly, he asked why, when a monthly review of the case is required in any event, the review could not just continue to consider renewal of the authorisation—that is a question that the noble Lord, Lord Paddick, has now posed to me twice.

--- Later in debate ---

[Lord Paddick]

I am very grateful to the Minister. Can she clarify? Under the old system, the assistant chief constable or equivalent would have to renew the authorisation every month; under the new system, it is my understanding that the assistant chief constable will only be involved every four months if there is a renewal and is not involved on a monthly basis as under the old system.

[Baroness Williams of Trafford]

I have this answer somewhere, if the noble Lord will bear with me. It is a statutory requirement for the authorisation to be at the rank of assistant chief constable. I think the noble Lord knows that. The monthly review is not a statutory requirement, but as a further safeguard we have included it in the updated code of practice.

[Lord Paddick]

I am very grateful to the noble Baroness. The question was: is the monthly review undertaken by the assistant chief constable or by the officer who sought the authorisation to use the child as a CHIS?

[Baroness Williams of Trafford]

I understand that the monthly review is done by the assistant chief constable. Have I still not answered the noble Lord’s question? The monthly review might be carried out by the authorising officer, but it is not a statutory requirement.

[Lord Paddick]

I am very sorry. My understanding was that the monthly review is done by the officer who applied to use the CHIS, not by the assistant chief constable. Have I got that wrong?

[Baroness Williams of Trafford]

I do not know whether the noble Lord has that right or wrong. I will have to come back to him on that point. Just so he does not think I am derelict in my duty, I did ask that question but I will have to come back to him on it.

I turn to the second question, which was not about the changes that we have made but about the existing distinction in the safeguards, where an appropriate adult must be present in all meetings with a juvenile under the age of 16, but not for those aged 16 and 17. The noble Lord compared this with rules around the interview of juveniles under caution, where interviews of all under-18s require an appropriate adult to be present. I point out that 16 and 17 year-olds can absolutely request that somebody be present—a social worker, an appropriate adult or even a lawyer—but it is not mandated. That probably will not satisfy the noble Lord, but the law recognises that parental responsibility diminishes as a child matures. There are therefore a number of areas where the law treats over-16s differently from under-16s. For example, they can apply for their own passports or join the military.

Internal police guidance on deploying juvenile CHIS contains detail on how to safeguard and promote the well-being of the juvenile CHIS, including how to assess their maturity and capacity to give informed consent, which the noble Lord, Lord Kennedy, mentioned, a requirement to ensure that handlers are properly trained to deal with young people—they have day-to-day responsibility for the CHIS and must raise any issues surrounding matters including the safety and welfare of the CHIS with those responsible for authorising their deployment—and requirements to consider all aspects of safeguarding the young person.

[Lord Kennedy of Southwark]

I am grateful to the noble Baroness on that point. Is she saying that the officers concerned get special training in that respect to deal with young people in this situation?

[Baroness Williams of Trafford]

Yes. Any officer dealing with a juvenile will have safeguarding training.

The enhanced risk assessments required before a CHIS is tasked are reviewed and updated throughout the duration of an authorisation, and are also updated after an authorisation is cancelled and where contact is maintained with the CHIS. This applies to all juvenile CHISs, regardless of age, but it really should not be taken that the vulnerability of all those aged under 18 is not taken seriously when considering deployment as a CHIS. Rather, the risk assessments are made on a case-by-case basis by those charged with day-to-day dealings with the CHIS, including on their safety and welfare, and who are charged with relaying this to the authorising officer, who also has a role in this assessment.

In a recent letter to the chair of the JCHR, the Investigatory Powers Commissioner, Lord Justice Fulford, provided clarity on what his inspectors considered when inspecting public authorities which have authorised juvenile CHISs, and confirmed that the detailed focus of his inspectors is on the “duty of care”.

Turning to the very specific comparison, I think we are probably talking about a different scenario—one where the juvenile could be charged with an offence, and convicted or given a caution. With a juvenile CHIS, we are talking about a very different scenario. A child would need to give or confirm their consent to take on the role, and is under no obligation or pressure to act as a juvenile CHIS.

The third question raised by the noble Lord, and also by the noble Lord, Lord Kennedy, is how the needs of the specific child are prioritised, particularly with the UN Convention on the Rights of the Child in mind. The UK ensures that the principles of the convention are considered and realised through the approach taken in legislation and other measures, ensuring that the child’s rights and interests are safeguarded.

[Lord Kennedy of Southwark]

On the previous point made by the Minister about there being no pressure put on a young person to act as a CHIS, is it possible, when a young person has come to the attention of the authorities—or may have committed a crime—that it would be suggested to the child that matters would not be proceeded with if they were to act as a CHIS instead?

[Baroness Williams of Trafford]

I understand the noble Lord’s point. It would be unwise for me to stand at the Dispatch Box and say that that was the case, because I simply do not know. I can find that out. It would be rather cynical to take the view that these children, who are perhaps not perfect in many cases, would be deployed just on the information that officers could get out of them or as a quid pro quo for leniency over other matters in which they may have been found wanting.

[Lord Kennedy of Southwark]

I am just trying to understand the situation. It would be nice to hear from the noble Baroness at some point—maybe she can write to us. It should obviously always come to the attention of the authorities through various means, such as intelligence. However the authorities come to it, what are the circumstances such young people would find themselves in with the authorities?

[Baroness Williams of Trafford]

I will certainly write to the noble Lord on that matter.

The legal framework governing the authorisation and the use of the juvenile CHIS, when taken as a whole, is clearly capable of being exercised in a way which is consistent with the UN Convention on the Rights of the Child. The 2000 order, the supporting guidance provided in the CHIS code of practice and the internal guidance applied by public authorities seeking to use juvenile CHISs, all ensure that the welfare of any juvenile being considered for deployment as a CHIS is the paramount consideration.

Each part of the legislative framework is designed to ensure that the authorisation of a CHIS under the age of 18 is subject to enhanced safeguards, reflecting the need to consider the welfare of the child. The Regulation of Investigatory Powers (Juveniles) Order 2000 requires enhanced risk assessments to accompany any decision to use a juvenile CHIS, which are updated to reflect developments during the course of the deployment. They take into account the physical and psychological welfare of that young person, and are also updated after the deployment if contact is made.

The police will also have regard to their broader safeguarding responsibilities when making these decisions, which was the point raised by the noble Lord, Lord Kennedy. Indeed, the National Strategy for the Policing of Children and Young People, endorsed and published by the National Police Chiefs’ Council in 2015, says:

“It is crucial that in all encounters with the police those below the age of 18 should be treated as children first. All officers must have regard to their safety, welfare and wellbeing”,


as required under Sections 10 and 11 of the Children Act 2004 and the United Nations Convention on the Rights of the Child.

--- Later in debate ---

[Baroness Hamwee]

Is the “operational community” operational in the children’s sector or is it police operational?

[Baroness Williams of Trafford]

I understand that it would be police operational, but I will clarify for the noble Baroness whether operators in the children’s sector were also involved.

The updates to the CHIS code of practice in 2014 and 2017 were subject to formal public consultation, with no concerns raised about either the use of juveniles as CHISs or the safeguards that apply. But this provision has been in place for 18 years and it has probably had more scrutiny in the last two months than it ever had during those 18 years—and that is a good thing.

The noble Baroness, Lady Hamwee, also outlined an absolutely harrowing case study. I understand that those issues, if we are talking about the same ones, are being considered by the undercover police inquiry and that the Home Office is co-operating fully with the inquiry. We have responded to requests for information and have given the inquiry access to our files and records.

The noble and learned Lord, Lord Judge, raised the issue of further oversight. I think that I went through that point when we last debated this. It would not be a simple matter; it would be one for primary legislation. Nevertheless, I take his point. I hope he feels that, under the leadership of Governments of different political colours, the safeguards have been enhanced and are robust, and that there is strong and effective oversight in the form of Lord Justice Fulford.

The noble Lord, Lord Kennedy, talked about the public consultations on the provision. It was subject to statutory public consultations—most recently in 2017-18—and views from all were absolutely welcome. It is not incompatible with existing legislation—but, as I have just said, this House has given it more scrutiny than any other.

I have two more scraps of paper. The noble Lord, Lord Paddick, asked about the authorising officer. The authorising officer should, where possible, be responsible for completing subsequent renewals and any other related security or welfare issue—but I do not think that that answers his question. I now know what that question was, and the other scrap does not answer it, either, so I will get back to him on that specific point.

This House has given this really serious issue the time, scrutiny and questioning that it deserves, after 18 years of it passing largely unnoticed by either House of Parliament. I thank the noble Lord, Lord Haskel, for raising this in the first instance and the noble Lord, Lord Paddick, for raising it today.

[Lord Paddick]

My Lords, I too thank the noble Lord, Lord Haskel, and the Secondary Legislation Scrutiny Committee for bringing this provision to the attention of the House. As he said, using children in this way puts them in danger, and if any of us were in any doubt about that, the harrowing story that my noble friend Lady Hamwee told the House clearly indicates that.

The noble and learned Lord, Lord Judge, made the important point that surveillance commissioners formerly and now judicial commissioners review the deployment of child CHISs after the event. There is now a recognised definition of a child as a person under 18. We should be talking about child CHISs, not juvenile CHISs, in this debate. An eminently sensible suggestion was made. Under the Investigatory Powers Act, many surveillance powers are subject to the double lock whereby both a senior officer and a judicial commissioner agree to the use of the surveillance technique. Why can that not be used in this case?

The Minister kept talking about the enhanced safeguards provided by these regulations. We still do not know whether the independent senior officer—the assistant chief constable—will be looking at these cases every four months instead of, as previously, having to look at them every month because the assistant chief constable could authorise for only one month at a time. We still do not know who is doing the review. If it is being done by the officer who applied to the assistant chief constable, rather than by the assistant chief constable himself or herself, I do not think anybody could describe that as an enhanced safeguard.

The Minister said that a child being interviewed under caution for a criminal offence is not comparable with being recruited as a CHIS. It is far more dangerous to be recruited as a CHIS than it is to be interviewed. The fact that 16 and 17 year-olds can be recruited as CHISs without an adult being present but cannot be questioned about a criminal offence does not strike me as an enhanced safeguard. Whether the legal framework governing the authorisation and use of juvenile CHISs, when taken as a whole, is clearly capable of being exercised in a way that is consistent with the UN Convention on the Rights of the Child is an issue that the courts will be asked to consider. Therefore, on that question we perhaps do not need to take things further today.

I am very grateful to the Minister not only for the time to debate this twice, once in Grand Committee and once in the Chamber, but for the time she has spent discussing these issues with me and trying to clarify what we need on the record. Unfortunately, I do not feel that we have got there this evening. There are unresolved matters which the Minister has agreed to write to noble Lords about. At this stage, I beg leave to withdraw the Motion.