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Covert Human Intelligence Sources (Criminal Conduct) Bill Debate
Full Debate: Read Full DebateBaroness Bull
Main Page: Baroness Bull (Crossbench - Life peer)Department Debates - View all Baroness Bull's debates with the Home Office
(3 years, 9 months ago)
Lords ChamberMy Lords, I join others in welcoming the noble and learned Lord, Lord Stewart of Dirleton, and congratulating him on an excellent maiden speech. In a crystal clear exposition of the Bill, he reminded us that the use in exceptional circumstances of children as covert sources, including those as young as 15, is already covered by law. This Bill would allow for them to be authorised, in exceptional circumstances that continue to be undefined, to commit criminal offences in order to integrate themselves into groups under investigation and provide intelligence that would not otherwise be available.
I am not the first today, nor will I be the last, to express concerns about the use of children as mechanisms for intelligence gathering, however valuable that intelligence might be. It stands in direct contradiction to what should always be our intention, which is to remove children from situations and relationships that promote criminality, and it almost certainly involves children from already disadvantaged backgrounds, further widening the inequalities between the lives and long-term outcomes of those who have and those who have not. We know that criminals prey upon vulnerable individuals, including children, using their vulnerability as a shield against law enforcement. It seems extraordinary that, rather than ending this exploitation, the law itself would become the next perpetrator of continued abuse through the recruitment of children and vulnerable individuals as CHIS. I argue that they should never be used in this way but, if they are, as the law already allows, every possible safeguard needs to be in place.
The revised code of practice includes several welcome improvements, but there are areas that still need to be strengthened. Clarity is needed on what constitutes an “exceptional circumstance”, and the code should be clear that the protection of an appropriate adult must be available to all children under 18, rather than on a case-by-case basis, as is proposed. This appropriate adult provision is standard practice for police interviews, even for the most minor transgressions. It cannot be right to fail to provide this support when children are taking the serious decision on whether to place themselves in harm’s way.
The revisions to the code add considerably to the section on juvenile sources but not to that relating to vulnerable individuals. The definition of a vulnerable adult fails to include victims of slavery or trafficking. Although paragraph 4.6 of the code stipulates that there must be an assessment of the juvenile’s ability to give informed consent, there is no such stipulation when it comes to vulnerable adults. Anti-Slavery International has questioned the extent to which someone who has been trafficked or exploited is able to give this informed consent, given their traumatic experiences of manipulation and control, and the long-term impact that this can have on their ability to make independent decisions.
There is also no reference in the code of practice to mental capacity and the ability of someone with impaired mental capacity to consent to acting as a CHIS. As mental capacity is not universal but specific to a given decision, and as it can change over time, it presents particular challenges and needs to be specifically covered. This omission is yet another example of legislation and statutory guidance failing to make provision in relation to mental capacity. I would be grateful if, in responding, the Minister could confirm that this omission will be reviewed.
I know that there will be some who argue that these safeguards are best placed in the code of practice rather than on the face of the Bill, but putting them on a statutory footing would send out a clear and unequivocal message about the importance that we place on our responsibility to protect children and the most vulnerable in our society. They are already a target for exploitation by criminals and they should be able to rely on the state, not only for protection but to help break a cycle of abuse that will otherwise echo on through the course of their lives.
Covert Human Intelligence Sources (Criminal Conduct) Bill Debate
Full Debate: Read Full DebateBaroness Bull
Main Page: Baroness Bull (Crossbench - Life peer)Department Debates - View all Baroness Bull's debates with the Home Office
(3 years, 8 months ago)
Lords ChamberMy Lords, I speak in support of Amendment 43, in the names of my right reverend friend the Bishop of Durham, the noble Lord, Lord Young, and the noble Baronesses, Lady Chakrabarti and Lady Bull, and Amendment 60, in the names of the noble Baronesses, Lady Young and Lady Hamwee, and the noble Lord, Lord Kennedy of Southwark. As we have heard, both concern the treatment of children.
We should not for a moment underestimate some of the evils in our society that the Government and the forces of law and order are tasked with confronting. Some of those evils involve the abuse of children and vulnerable people, including, as we know, the scourge of county lines drug gangs, sexual predators and traffickers. It does not take much imagination to see how, as a result of this, there is a periodic temptation to use children as covert assets. We must clearly guard against that temptation; as we have already been reminded, our first duty must be to the care and well-being of children. This applies all the more to children who find themselves in vulnerable and harmful situations, such as those used and abused by criminal gangs.
We are talking here about the exposure of children to dangerous, exploitative and traumatic environments, with significant potential long-term consequences for the children in question. Our responsibility must be to look first to their welfare. As we have been reminded by the noble Lord, Lord Young, it is argued that covert tactics involving children can be of great value in protecting other victims, but how do we determine an acceptable level of harm to a child, even if there might be a wider benefit? Even if that argument were acceptable, as, again, the noble Lord, Lord Young, observed, how can a child legitimately understand and give informed consent to keeping himself or herself in a harmful situation? It seems to be a very dangerous precedent to suggest that a child can provide informed consent to an activity that may cause long-term harm and trauma.
Therefore, I support both these amendments, which recognise the principle that our first duty is to protect and support children and vulnerable people. As we have been reminded, Amendment 43 would prohibit the use of children as covert agents in criminal activities, while Amendment 60 significantly raises the threshold for the granting of criminal conduct authorisations to guarantee that they could be used in only very extreme circumstances and with much more thorough safeguards than are presently provided.
As others have emphasised, we are all hugely grateful to those who work to protect children and confront criminals who would abuse them. I do not for one moment underestimate the difficulties that they face, but I fear that the Bill, as it stands, does not do enough to provide sufficient safeguards for protecting children from being seen as assets rather than victims who need support. That is why I am glad to support these amendments.
My Lords, I rise principally to support Amendment 43, to which I have added my name, but I fully support all the amendments in this group, which have in common their intent to protect children and the most vulnerable in our society. Before I address Amendment 43, I will speak briefly to Amendment 52, in the names of the noble Baronesses, Lady Hamwee and Lady Doocey, and the noble Lord, Lord Paddick. I mention Amendment 52 in particular because it addresses two issues that I and others raised at Second Reading: first that the code of practice’s definition of a vulnerable adult currently fails to include victims of slavery or trafficking; and secondly that, while the code stipulates that there must be an assessment of the juvenile’s ability to give informed consent, there is no consideration given to the ability of a vulnerable adult to give consent.
The insertion of proposed new subsection (8A)(b) would specify that authorisation must not be granted to anyone who is a
“victim of slavery or servitude or forced or compulsory labour or of human trafficking or exploitation”.
This addresses the concerns raised by Anti-Slavery International, namely that someone who has been either trafficked or exploited is unlikely to be able to give informed consent to acting as a CHIS, given their traumatic experiences of manipulation and control and the long-term psychological implications of this on their ability to make independent decisions.
Within the same amendment, proposed new subsection (8A)(c) would prevent authorisation being granted to anyone
“who has been assessed by an appropriately qualified independent person as likely to be unable to give informed consent to acting as a source”.
I believe this would go some way to addressing my concerns about the absence of any reference in the code of practice to mental capacity and the ability of someone with impaired mental capacity to consent to acting as a CHIS. It has to be borne in mind that mental capacity is specific to a given decision, rather than universal. The Mental Capacity Act code of practice is clear that someone can have capacity to make decisions in certain areas, such as deciding what activities they would like to do during the day, but lack it for others, such as deciding whether to engage in risky and dangerous activities such as acting undercover. Given this, it seems to me essential that mental capacity is specifically taken into account.
I turn now to Amendment 43. I am grateful to and in awe of the noble Lord, Lord Young of Cookham, for introducing the amendment so effectively, and to the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Carlisle for their contributions. I fully support their remarks and will add only a few of my own.
My primary objection to the use of children as covert sources is that it stands in direct opposition to our fundamental responsibility to children both morally and legally, as we have heard, to do everything in our power to extricate them from situations and relationships that promote criminality and risky behaviours. We know that vulnerable young people are targeted by criminal gangs who groom, manipulate, intimidate, coerce and force children into the packaging and supply of drugs and the transportation of money, drugs and drug paraphernalia. We know that these children are often obliged to commit criminal acts in order to establish their credibility and prove their trustworthiness within the gang.
These are children who almost inevitably come from disadvantaged backgrounds—growing up in deprived areas, living with experiences of trauma, substance misuse, mental health issues, learning difficulties and possibly even in the care of local authorities. These are children whose life chances and opportunities are already greatly reduced in comparison to their better-off peers, thus further deepening the inequalities between those who have and those who have not. It is hard to believe that, rather than acting to end this exploitation, the law itself would recruit them as covert sources, exploiting the existing exploitation and, in effect, becoming the next perpetrator in a cycle of continued abuse.
Alongside this moral argument, there is a more practical consideration. Research suggests that teenagers are not even particularly effective as covert sources, because information-processing abilities are not as developed in teenagers as they are in adults. Adults think with the prefrontal cortex, the rational part of the brain, which means they can respond to situations with judgment and with consideration of the long-term consequences. Teenagers process information with the amygdala: the emotional part of the brain. In teenagers, the connections between the rational and emotional parts of the brain are not yet fully developed, which is why they cannot always explain what they are thinking. Often they are not thinking—they are just feeling. Adolescents are more likely to act on impulse and engage in dangerous behaviours, and they are less likely to pause to consider the consequences of their actions.
We also know that most young people involved in gangs and drug supply are themselves regular users of drugs, which they may need to use in order to blend in. I am grateful to Dr Grace Robinson for sharing her work in this area. Drugs and alcohol use can change or delay development of the connections between the logical and emotional parts of teenage brains. All this throws into question the accuracy, consistency and completeness of any information provided by teenagers acting as covert sources and, as a result, its utility in intelligence-gathering operations.
Alongside the fundamental concern of whether it is morally and legally right to put young people directly in harm’s way, we need to set this secondary concern, of whether the information they are likely to provide would be of sufficient value to justify the risks. My belief is that, however valuable the information, it can never off-set the immediate and long-term harm to young people recruited to act as covert sources—young people whose life opportunities and outcomes are already likely to be compromised. For this reason, I stand with the noble Lord, Lord Young of Cookham. The end does not justify the means.
Covert Human Intelligence Sources (Criminal Conduct) Bill Debate
Full Debate: Read Full DebateBaroness Bull
Main Page: Baroness Bull (Crossbench - Life peer)Department Debates - View all Baroness Bull's debates with the Home Office
(3 years, 7 months ago)
Lords ChamberThe noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.
I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.
I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.
We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.
Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.
Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.
Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.
The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.
Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.
My Lords, I support Amendment 12 in the name of my noble friend Lord Young of Cookham. It is clear, coherent and consistent. It seems to me that my noble friend’s parliamentary career from the outset has been marked out by two great skills. First, he has the ability of get to the essence of the issue in front of him at the time. His second—and greater—skill is the ability to see where things are going, not least in the near and mid future. In his excellent opening speech, he demonstrated both skills perfectly.
I urge him to press Amendment 12 to a Division. A majority of noble Lords have spoken in favour of it. It is a matter of testing the opinion of the House on what is right, rather than what may fit with a particular day’s parliamentary arithmetic. I cannot improve on any of his words in his introduction, save to say that I agree with every last detail, and I urge him, as have a majority of other noble Lords, to press his amendment to a vote.