Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Debate between Lord Judge and Lord Trefgarne

Wednesday 18th July 2018 Grand Committee

[Lord Trefgarne (Con)]

My Lords, I want to intervene briefly. I thank the noble Lord, Lord Haskel, for bringing this important issue of the use of juveniles for covert intelligence gathering to your Lordships’ attention. I have the honour of being the chairman of the Secondary Legislation Scrutiny Committee, as the noble Lord, Lord Haskel, was kind enough to point out. He is an experienced and distinguished member of the committee and I am grateful for his contribution to our work.

Earlier this month, the committee considered this order, along with the associated code of practice, and we decided to report the instruments not only on the grounds of policy interest but because we were disappointed by the quality of the explanatory material laid in support. The effect of the order is to increase the period for which a juvenile can be authorised for covert intelligence purposes from one month to four months. What was of particular concern was that the original Explanatory Memorandum accompanying the order appeared to justify the increase on the grounds of administrative convenience, rather than focusing on the welfare of the young person concerned.

As chairman, I therefore wrote to the Minister, Mr Wallace, to express what I described in my letter as the committee’s “considerable anxiety” about using young people in this way. The Minister told us that juveniles, in acting as covert intelligence sources, would be able to assist in both preventing and prosecuting offences such as,

“terrorism, gang violence, county lines drugs offences and child sexual exploitation”.

That may be so, but these are all very serious offences. The use of juveniles—young people under the age of 18—in such a dangerous environment is, therefore, a profoundly serious matter.

In these circumstances, the Committee will, I think, wish to hear in detail what assurances my noble friend the Minister can offer about how the welfare of the juveniles involved in covert intelligence is protected, both while it is happening and in the longer term.

[Lord Judge (CB)]

My Lords, until last August, I was for two years the Chief Surveillance Commissioner—an office that no longer exists under the current legislation. I will echo one or two, but not all, of the points that have been made so far. If I may say so, I thought that the Explanatory Memorandum for this proposal in relation to juveniles was thoroughly inadequate and, if it had been adequate, would have said a good deal to allay the concerns that have been expressed today. I did not think that the letter from the Minister allayed those concerns—it did not address them, it seemed to me.

There is in fact an extremely careful system for supervising, organising and taking responsibility for all CHIS. There are very few juvenile CHIS, for all the reasons that have been given; I do not think the figures have been kept, but I can say this. What may not be apparent to many people in the Committee today is that each police force is examined and inspected by independent inspectors, answerable to a judicial figure, and the inspections cover every form of intrusive investigation that has gone on and all issues relating to the use of covert human intelligence. I can say from my own experience—it is not a state secret—that in relation to any CHIS activity involving juveniles, the inspectors pay particular attention to see that the issues of welfare and so on have been properly addressed. All this could have been explained and made available to the Secondary Legislation Scrutiny Committee, which would then have formed whatever view it thought appropriate.

There is, however—I could go on for some time about this—one point that needs consideration if the Government, decide to follow the suggestion made by the noble Lord, Lord Haskel. Within the surveillance process, in relation to authorisation for intrusive surveillance, such an order, however made—even by the chief constable himself or herself—does not take effect until it has been approved by a judicial commissioner and when the notice of that decision has been given to the person who granted the authorisation. It might just be worth giving some thought to using that particular additional safeguard when we are considering the rare occasions when a juvenile CHIS is being used.