Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kidron Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

[Baroness Massey of Darwen (Lab) [V]]

My Lords, the noble Lord, Lord Young, has spoken passionately and eloquently about protecting children, as he did in Committee. He made an excellent start to this debate.

I shall speak to Amendment 14, which prohibits the authorisation of criminal conduct by children without specific prior judicial approval. I thank the Minister for arranging for my noble friend Lord Dubs and me to meet officials in the Home Office to discuss this amendment. This was useful and informative but my concerns remain about the use of children in criminal circumstances.

The Joint Committee on Human Rights, of which I am a member, reported on the Bill last November. The government response to the report was published on Monday and makes substantial reference to criminal conduct by children, for which I am grateful. I shall refer to those reports.

I come to the Bill as someone who has worked with children—anyone under the age of 18, as defined in the UN Convention on the Rights of the Child—for many years. I am not sentimental about children, but I believe that they have rights as set out in the UNCRC— not just legal rights, although they are important, but moral and ethical rights such as protection, safety, family life and the right to be heard. Societies that nurture, cherish and attend to the total welfare of children are civilised societies. No society should endanger children. They need protection but also empowerment to take responsibility for themselves and others, and to learn to express opinions constructively. I like to think that the UK aspires to these principles of the UNCRC which it has ratified. We are fortunate in this country in having an articulate, dedicated voluntary sector for children that keeps us vigilant to their needs.

I cannot see how a child could be used to commit a criminal offence without there being a risk of danger, physical or psychological. As the noble Lord, Lord Young, said, I would prefer children not to be working as CHIS at all, but if they do we must make the situation as watertight as possible. I and other noble Lords know of cases where children have been let down and exploited by systems, and fallen through the net to physical and psychological harm, sometimes death. That must be prevented at all costs. It is why my amendment seeks high-level judicial approval before a child can take part in criminal conduct. The organisations Justice, Just for Kids Law and the Children’s Rights Alliance for England call that “meaningful safeguards”.

Amendment 24 in the name of the noble Baroness, Lady Kidron, and other noble Lords is very worthy. The noble Lord, Lord Young, referred to it as a useful advancement. I recognise also that she and her co-signatories are people who also care deeply about children’s welfare. That amendment extends additional protection not only to children but to vulnerable adults. That is important but, and this is a big “but”, it does not provide for independent judicial scrutiny of a CCA being made in respect of a child or other vulnerable person. It imposes a requirement that there should be exceptional circumstances before an authorisation is granted and makes it clear that other interests cannot be more primary than the child’s, and that it must have been determined that the child will not be in any danger of foreseeable physical or psychological harm. That amendment also makes compulsory the presence of an appropriate adult for all under-18s when meeting with the investigating authority. It requires any use of a CCA in respect of a child to be reported to the Investigatory Powers Commissioner within 18 days.

Amendment 24 meets most of the concerns of the Joint Committee on Human Rights about the welfare of children under CCAS. However, a major concern is that there is no independent decision-maker—only independent review after the event by the IPC. This system can pick up an abuse of power only when it has happened. Tough, independent assessment of whether a child should be used as a CHIS should be made before the child moves into a dangerous situation. I am sure the people working with these children are caring and professional, but this is such a serious issue for children that a judicial commissioner should look at each case and make the final decision.

I know that the Minister, speaking on different amendments on Monday, said that she could not agree with prior authorisation. I am not sure why. It may be that she can tell me more. There are not that many children in such a position—between 12 and 17 between 2015 and 2018. Undue delay would therefore be unlikely and the children’s cases would have double scrutiny, which is what they deserve, due to the seriousness of what they are being asked to do. If Amendment 24 is accepted by the House, I shall not put my amendment to the test but will suggest further action. The government amendment does not add much to what we have already heard, and we need to go further. That amendment, however, recognises that there are concerns about authorising children as CHIS and makes efforts at reconciliation, as the noble Lord, Lord Young, said.

This issue is not new. The Joint Committee on Human Rights raised concerns in 2018 and 2019 with the Minister for State for Security and Economic Crime and the Investigatory Powers Commissioner. In 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 of the European Convention on Human Rights. The court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was

“liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”

The Joint Committee on Human Rights concluded that the Bill must be amended to exclude children or to make clear that children may be authorised to commit criminal offences in only the most exceptional circumstances. I suggest that those exceptional circumstances should have independent consideration at the highest level.

The Government’s response to the JCHR report gave considerable space to discussion of these issues in relation to chapter 6 of the report. But they came up with, to me, a rather tenuous argument, stating that

“young people may have unique access to information that is important in preventing and prosecuting gang violence and terrorism. This helps remove from the cycle of crime not only the young person … but other young and vulnerable individuals caught in criminality. We should also acknowledge that by universally prohibiting the authorisation of young people to undertake criminality we are increasing the risks to them and placing them in an even more vulnerable position. If criminal gangs … know that a young person will never be authorised by the state to undertake criminality, such groups will be more likely to force young people to engage in criminality, confident in the knowledge that they could never be a CHIS”.—[Official Report, 3/12/20; cols. 937-8.]

I can see absolutely no logic in that statement.

Indeed, a former undercover police officer, with experience of being a CHIS, has said that

“Children recruited as informants are also highly likely to end up getting drawn back into criminality and feeling trapped in their situation.”


I am aware that the noble Baroness, Lady Hamwee, knows something about those situations.

A leading and highly respected child psychiatrist has said that

“the deployment of children as a CHIS could incur significant … emotional damage to the child and could in fact engender the creation of new criminals by placing them in criminogenic environments.”

This is not child protection; it is not respecting children’s rights. It is dangerous and potentially destructive. Every care must be taken, and we have a duty to see that that happens.

I have the greatest respect for the Minister and admire her common sense, sensitivity and practicality. Might I suggest that this whole operation needs to be taken away and looked at again very carefully, with an independent review? This should cover: the types of involvement by children; how children are assessed as suitable for such work; how the views of children, parents if appropriate and those accompanying children are taken into account; what psychological support is offered; and how children are assessed and supported after their involvement as CHIS, and for any long-term effects.

This may result in a recommendation not to use children in this fashion—I would welcome that—or in more stringent methods of prior independent authorisation being employed, as suggested by my amendment. The current situation in which children are used as CHIS cannot remain the same. I hope that the Minister will consider this suggestion. This issue is not going to go away; indeed, it is likely to intensify. I look forward to her comments and thank noble Lords for their time.

[Baroness Kidron (CB) [V]]

I speak to Amendment 24 in my name and that of the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. This sets out the safeguards and protections that should exist if we ask a child to commit a crime as a covert human intelligence source. I pay tribute to the work that many have done on this issue, including the noble Lords who support this amendment; the noble Baroness, Lady Young of Hornsey, who raised these concerns so admirably in Committee; the right reverend Prelate the Bishop of Durham, who has left us with no doubt where right lies; and my noble friend Lord Russell of Liverpool, who has taken time to go through the interlocking amendments and considerations with me.

I also acknowledge the tireless efforts of Stella Creasy MP, in bringing this issue forward in the other place, and the children’s rights advocates Just for Kids Law, which brought the court case on this matter last year. I have taken up the baton for this work at their request. As many of your Lordships know, my time, both in the House and beyond its walls, is spent as an advocate for children’s rights online and offline. I have great sympathy for the other amendments in this group, but I speak to Amendment 24 only and will make some points about government Amendment 26. I note and take to heart the words of both the noble Baroness, Lady Massey, and the noble Lord, Lord Young of Cookham; while I have their support for what I propose, it is the absolute minimum that children require and is not ideal, in their view. I declare my interests set out on the register.

Children do not all have the same circumstances. It is simply a fact that some children will not be as well-loved as others, some not as well-cared-for and some not as well-behaved. None the less, whether they are loved, cared for or well-behaved, any person under the age of 18 is a child. In a context where a person under the age of 18 is being asked to be a covert source and do something illegal, we must ensure that they remain a child in the eyes of all who play a part. In every other interaction with the criminal justice system, we try to remove children from criminal activity to take them away from harm and towards safety, but before us is legislation that formalises our ability to do the opposite.

--- Later in debate ---

Moved by

[Baroness Kidron]

24: Clause 1, page 3, line 16, at end insert—
“29C Criminal conduct authorisations: granting to children and vulnerable sources (1) This section applies when the source is—(a) under the age of 18,(b) a vulnerable individual, as defined in subsection (5), or(c) a victim of modern slavery or trafficking, as defined in subsection (6). (2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.(3) Where a criminal conduct authorisation is granted for a source to whom subsection (1) applies, the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.(4) In subsection (3) “appropriate adult” means—(a) the parent or guardian of the source;(b) any other person who has for the time being assumed responsibility for his or her welfare; or(c) where no person falling within paragraph (a) or (b) is available and deemed appropriate, any responsible person aged 18 or over who is neither a member of nor employed by any relevant investigating authority.(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015 (human trafficking), or exploitation as defined by section 3 of that Act (meaning of exploitation).(7) The “exceptional circumstances” in subsection (2) are circumstances—(a) where authorisation of the criminal conduct authorisation is necessary and proportionate considering the welfare of the covert human intelligence source;(b) where, if the covert human intelligence source is under 18, the relevant investigating authority has determined in its assessment that the criminal conduct authorisation remains compatible with and does not override the best interests of the covert human intelligence source;(c) where all other methods to gain information have been exhausted; and(d) where the relevant investigating authority has determined in its assessment that the source to whom subsection (1) applies will not be at risk of any reasonably foreseeable harm (whether physical or psychological) arising from the criminal conduct authorisation.(8) Where a person grants a criminal conduct authorisation to anyone specified in subsection (1), that person must give notice of that authorisation to the Investigatory Powers Commissioner.(9) A notice under subsection (8) must—(a) be given in writing;(b) be given as soon as reasonably practicable, and in any event within seven days of the grant; and(c) include the matters specified in subsection (10).(10) Where a person gives notice under subsection (8) in respect of the granting of a criminal conduct authorisation, the notice must specify—(a) the grounds on which the person giving the notice believes the matters specified in section 29B(4) are satisfied;(b) the conduct that is, or is to be, authorised under section 29B(8); and(c) the reasons for believing that “exceptional circumstances” as set out in subsections (2) and (7) apply.”

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kidron Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

I intend to move Motion E1 at the appropriate point to test the opinion of the House.

[Baroness Kidron (CB) [V]]

My Lords, I wish to speak to Motion D, the government amendment in lieu of Lords Amendment 4. I, too, thank the Minister for her time and the care that she showed when we met. I wish also to recognise Stella Creasy MP, who has done so much to advance this issue.

I warmly welcome the enhanced protections, most particularly on the definition of exceptional circumstances. Experts have made clear to me that if that is applied rigorously, coupled with the amendment of the noble Lord, Lord Anderson, it will indeed make a real difference on the ground. Asking children to undertake illegal activities on behalf of the authorities is a place that none of us wants to be in, but as the Bill does precisely that, by formalising and giving permission to instruct child operatives to commit crime, it must be to the highest order of protection. It is the question of what a child is that I wish to raise once more.

A child of 16 or 17 is still a child, as defined by the UN Convention on the Rights of the Child and in our laws, and treated in our communities and families as a child—by right, by law and by practice—and yet the Bill does not afford 16 and 17 year-olds the protections due to children. While under-16s have the absolute right to have an appropriate adult with them when they meet a relevant person, in the case of 16 and 17 year-olds, a relevant person can decide that there are

“circumstances which justify the absence of an appropriate adult”,

even when that is a meeting that will lead to the child undertaking illegal activity on behalf of the authorities. This introduces an extraordinary conflict of interest that structurally undermines the Bill’s other requirement to act in the best interest of the child because it denies a 16 or 17 year-old child the automatic right to the presence of an adult who has the child’s interests as their unfettered concern.

Moreover, while I know the Minister’s assurance that more than one person must be involved, those circumstances can happen at the beginning of a child’s use as a CHIS, during their term as a CHIS and again under proposed new article 10 concerning the renewal of each four-month term, thereby making it possible for a child to be introduced, managed and repeatedly renewed as a CHIS, with no appropriate adult present at any time.

When we last debated this matter, a number of colleagues robustly criticised the amendment in my name, arguing that we should ban child CHIS altogether. However, while my heart is entirely with them, I had accepted the Government’s argument that if gang leaders knew beyond doubt that a child could not be a CHIS, it would drive further recruitment and exploitation of children by gangs. My, albeit reluctant, view was that the best way in which to protect children from being exploited by gangs was to allow the possibility of a child CHIS but to shroud the process in robust protections. We have failed to do that for 16 and 17 year-olds.

This is a failure of which the Front Bench of the Official Opposition in the other place should be ashamed, given that they have not fought for it. I am further disappointed that the Government have used their majority to walk through the Lobby rather than to protect the citizens they are elected to serve—in this case, vulnerable children being made more vulnerable at the behest of the state. All that is being asked here is that every child has an appropriate adult whose role is to make sure that what the child is being asked to do meets the bar of exceptional circumstances, and is understood, agreed to without pressure and in their best interests.

I do not doubt the principled behaviour of many in the enforcement community. I will work alongside officers in the UK and internationally whose commitment to exploited children online is nothing short of humbling. However, history is littered with examples of people in authority who have abused their position. In creating this glaring loophole, not only are we clearly exposing these children to the possibility of abuse by those in authority, we are also exposing those in authority to suspicion, and the Home Office itself to reputational and legal risk from even one bad apple.

Therefore, while the Bill is all but done, I still have some practical questions on both safeguarding and arrangements for meeting, as set out in proposed new Clause 29C(3)(b)(ii) and proposed new subsection (3)(c), where the word “believes” is the bar. In spite of the Minister’s assurance, that still appears to allow a relevant person to say that he or she thought that there was no harm in asking the child to do something illegal. Can she confirm that the guidance will include an objective test for both issues? Similarly, does the IPCO have to work out whether the officer “believed” that the illegal activity was in the child’s best interests or will they be looking to establish whether the action was “compatible” with the child’s best interests? In the event that the IPCO does not like the explanation, how quickly and by what process would it be challenged, bearing in mind that all the while a child is acting as a CHIS with no support? If the final port of call is reporting to Parliament, as we have heard, what level of detail is the IPCO to provide to Parliament? If, God forbid, something went wrong, is there an expectation that the police would reveal that a child was acting as an informant to serious case review, and would that automatically trigger an investigation?

The guidance, the code of conduct or, as the Minister rightly suggested, secondary legislation may be the last port of call for these children. Perhaps she can say when it will be ready, what form it will take and whether she would consider sharing it in advance so that parliamentarians with an interest in this matter can comment and input. Will the guidance be subject to a child rights impact assessment? I understand that it is frustrating to have to deal with so many questions at this late stage but almost every child CHIS has been or will be 16 or 17 years old. If the Bill fails this age group, it will have failed children overall.

In these extraordinary times, we have byzantine rules that make it difficult for colleagues to participate, so I want to put on the record that while the form of expression is mine, the view I am expressing is shared by scores of noble Lords on the Government Benches, the Opposition Benches and my own Benches, and a veritable flock of Bishops, who regret the lack of opportunity to make their views known.