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

Lord Trefgarne Excerpts

Wednesday 18th July 2018 Grand Committee

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have been watching the Met Police moderately intensely for nearly two decades. I genuinely thought that I could not be surprised, but I have been surprised by this. I congratulate the Secondary Legislation Scrutiny Committee on bringing this to our notice, and the noble Lord, Lord Haskel, on explaining the situation so eloquently and passionately.

I was surprised and shocked to find out that the police and other public authorities are legally allowed to use children as spies, doing police work. I found out only because the Government want to change the rules so that rather than authorising a child to spy for only one month at a time, they can be authorised for four months. I want to state this very clearly because, like myself, most people will not know it: children are being used by the state to infiltrate criminal groups and do dangerous police work. I do not see how this can be considered acceptable.

The Home Office Minister has linked child spies with terrorism, gang violence, child sexual exploitation and county lines drug rings, and appears to have suggested that the impact on the child spies can be outweighed by the benefit to potential victims. I am frequently infuriated, even confused, by the things that the police and security services do, but to me this is absolutely staggering, especially when you realise how little safeguarding is in place for the affected children. The authority using the child spy has to conduct a risk assessment and then consider whether it is justified to expose the child to the identified risks. Someone has to be in charge of the day-to-day welfare and monitoring of the child spy, but we already know how badly the police have failed in such duties in the past.

For example, the ongoing “spycops” public inquiry has highlighted how the police can lose track of people and turn a blind eye to things that are potentially highly illegal and dangerous. Trained undercover police officers have gone rogue and acted beyond their authority, forming sexual relationships with women in campaign groups and even fathering children, before disappearing, never to be seen again. If this can happen when the police are watching trained police officers, what worse things could happen when children are at risk? How can we trust the police to perform their duty to the child spies whom they are recruiting and putting in danger?

How many child spies have been deployed under the power in Section 29 of the Regulation of Investigatory Powers Act 2000? What assessments have been conducted of how effective child spies are, what dangers they have been exposed to and what tangible results were obtained by their deployment? What rights and remedies do child spies have if something goes wrong or if they feel that they have been let down by their police handlers? I know the answer: almost nothing. They have no protections. We have heard from the Minister about safeguards but I would argue that not enough safeguards are in place. I think that most people would be shocked to learn that children are being used as spies and being exposed to such unimaginable risks. I doubt that it leads to any serious results in terms of fighting crime, while exposing children to real danger. This is yet another example of the inhumanity in our current system. We in your Lordships’ House have a chance not only to expose this but to attempt to correct it.

[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.