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

Baroness Hamwee Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord Haskel (Lab)]

My Lords, I am a member of your Lordships’ Secondary Legislation Scrutiny Committee, and somehow it has fallen to me to voice the concerns of the committee. It was I who spoke in the debate in July to which the noble Lord, Lord Paddick, referred. This order was presented to the committee as a matter of administrative convenience: extend the authorisation from one to four months and you reduce administration—simple. Perhaps it is because many of us are parents that we wondered why juveniles were being used in covert activity in the first place. The Explanatory Memorandum spoke of safeguards but not how they would be implemented, and it was silent on the number of juveniles involved. We requested more details, but we were still not satisfied, and so the committee decided to report this regulation to the House, both in our weekly report and in a Motion to Take Note—that was the debate in July.

During this process, it became apparent that juveniles were being used for far more dangerous activities than just checking on shopkeepers selling alcohol to minors, including activities relating to serious crime, drugs and terrorism. These activities put them in danger of violence and sexual assault, and all sorts of associated mental, physical, psychological and educational problems. Together with other noble Lords, we spoke of our concerns in the debate in July. The Minister sought to reassure us with more detailed safeguards, but many of us remained concerned.

Meanwhile, I was contacted by Rights Watch UK. It was concerned that human rights and the rights of the child were being ignored, and suggested that we should refer this to the parliamentary Joint Committee on Human Rights. After the debate, your Lordships’ committee did this, and the Joint Committee took it up with the Government through a series of questions. Its members share our concerns about the safeguarding of juveniles and what they call scope creep. As the noble Lord, Lord Paddick, said, this correspondence continues and there are meetings. This view is shared by another children’s charity: Just For Kids Law. It has contacted me and its lawyers have issued a pre-action letter to the Home Office seeking judicial review on this matter. During this time, there has also been press coverage, and I have received several letters from concerned parents.

As I said, the history is important because, at each stage, the Government have introduced further support for the juveniles and more detailed safeguards. For example, the numbers involved are now recorded; the authorising officer will weigh the intelligence benefits against the potential negative impact on the juvenile; and there will be more judicial and police scrutiny, and at a higher level. However, we remain unsure how consistent this will be across the various police forces and how it will be properly carried out.

The task of your Lordship’s Secondary Legislation Scrutiny Committee is to judge whether these reassurances and changes are sufficient. But it is for the House to decide whether this is a proper activity for juveniles and whether our police, judicial and security services provide adequate support and supervision.

This is not a party-political matter. As the noble Lord, Lord Paddick, explained, it is a security issue, a human rights issue and a rights of the child issue. Before the Government ask us to enact this legislation, with the increased assurances which they have given, I hope they will wait to see what comes out of the human rights correspondence and the judicial review. I feel sure that this is the view of most people in the House, and I look forward to hearing what the Minister has to say.

[Baroness Hamwee (LD)]

My Lords, I am pleased that my noble friend Lord Paddick has moved this Motion. I should declare an interest: I am a trustee of the organisation Safer London, which works to prevent and address young people’s involvement in crime, including running a gang exit programme for the Metropolitan Police and now MOPAC. In that role, I recently undertook some quite basic safeguarding training; safeguarding is of course very relevant to this issue. It seems to me that the thinking about safeguarding has developed; I wonder whether the thinking about the use of young people in the role of covert human intelligence sources has developed in tandem.

I asked somebody who I know through Safer London about this issue, and I was given the following example, which I think well illustrates the concerns that have been expressed. A young woman of 17, who was described to me as “on the edge of care”, whose parents were separated and who had been between boroughs, was exploited by a man who—this is very common—she thought of as her boyfriend. He was selling a group of girls, including her, for sex. The police were looking for information on him and she was left in her situation so that she could provide information. In other words, she was exploited by him and continued to be exploited by him, and was, arguably, exploited by the police. Eventually, she witnessed a murder. She was drawn into it, and not just as a witness, as she was asked to dispose of clothes and other items afterwards. How was her consent to this tested? No significant adult in her life knew of her involvement, and we must ask ourselves what qualifies a police officer to make the assessment that is needed here. This is obviously a question of training, but the officer making the assessment must also be independent from the particular investigation. I, for one—and this is nothing other than common sense—find it hard to believe that officers can easily put aside their loyalties to police colleagues in the investigation for which they have responsibility.

What is the position of corporate parents of a child in care? So many young people who are caught up in crime are, or have been, in care, or have low-level learning difficulties. Crucially, what support is given after the event? This is no doubt one of those muddy situations: a perpetrator may also be a victim, or a victim may be a perpetrator. I am told that it is not that uncommon for the police to offer witness protection in exchange for assistance—or, at least, they are very often asked to do this. As I say, it is quite a muddy situation.

My noble friend’s Motion regrets the lack of consultation with organisations concerned with human rights and the welfare of children. I suspect all of them would have raised similar points, and probably made the point that 16 year-olds are often not very mature, and indeed, neither are 18 year-olds. I do not know where vulnerability stops. To indicate how vulnerable young people might feel, I gather that it is not unusual for someone who was a gang member and is in a young offender institution to request segregation—solitary, in other words—because of fear of other gang members in the same institution.

--- Later in debate ---

The noble Baroness, Lady Hamwee, talked about consultation with organisations involved in safeguarding. There is no requirement to consult publicly on changes to the 2000 order, but we consulted broadly with the operational community, and the Investigatory Powers Commissioner’s Office was also involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS. The duty is to safeguard children and young people, and this was taken into account as part of the consultation.

[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.