Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

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

Depending on the contributions to this debate, particularly those of the official Opposition, I reserve the right to test the opinion of the House on Amendments 12 and 13, but I hope that the noble Baroness, Lady Kidron, when the time comes, will press Amendment 24 if it is not accepted by the Government. I beg to move.

[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.

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Moved by

[Baroness Massey of Darwen]

15: Clause 1, page 3, line 2, at end insert—
“(8A) A criminal conduct authorisation may not authorise any criminal conduct—(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;(b) involving an attempt in any manner to obstruct or pervert the course of justice;(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;(d) subjecting an individual to torture or to inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”Member’s explanatory statement
This amendment establishes a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act 1985.

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

My Lords, I thank my noble friends Lord Dubs and Lord Rosser and the noble Lord, Lord Paddick, for adding their names in support of this amendment.

The bottom line on this amendment is to include a prohibition on the authorisation of serious criminal offences. It establishes a prohibition on such offences listed in my amendment; these are in similar terms to those in the Canadian Security Intelligence Service Act 1985, which I will refer to later.

I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs, and I will refer to its report on the Bill, published last November. The committee had serious concerns about this part of the Bill, and I shall put this amendment to a Division unless I receive a thorough reassurance from the Minister.

In chapter 4 of the JCHR report, four issues are discussed: first, there being no express limit in the Bill on the type of crime that can be committed; secondly, consideration of the approach taken in other jurisdictions; thirdly, the power to prohibit certain conduct by order; and fourthly, the Human Rights Act as an effective safeguard.

In their written response to the JCHR report, published on Monday, the Government give detailed consideration to the recommendations in this amendment. I am grateful for that, but I do not think it covers all our concerns as a committee. The Minister will perhaps reflect these considerations in her response. It is helpful that the Government restate their commitment to human rights in the response at the end of section 3. They say that

“the United Kingdom is committed to human rights and will continue to champion human rights at home and abroad. The United Kingdom is committed to the ECHR.”

But evidence of the commitment to human rights has to be demonstrated and reinforced, and I am concerned that by not expressing limits in the Bill on the type of crime that can be authorised, human rights are not being defended.

The Joint Committee on Human Rights has expressed the concern that:

“The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.”


The Home Office, in its guidance on limits of authorised conduct, consider this necessary because

“to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”

In their joint written submission to the JCHR, the NGOs Reprieve, the Pat Finucane Centre, Privacy International and Big Brother Watch note that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill. However, the Canadian legislation expressly provides that nothing in the Act justifies the issues set out in my amendment. They are, to summarise: causing death or grievous bodily harm; perverting the course of justice; any offence under the Sexual Offences Act 2003 or the 2009 Act in Scotland; subjecting an individual to torture, inhuman or degrading treatment or punishment, as in the meaning of the HRA 1998; or depriving a person of their liberty.

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[Lord Mackay of Clashfern (Con) [V]]

My name was down due to a fault of mine; I apologise for interrupting.

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

I have reservations about some of the issues the Minister raised in summing up this excellent debate—most of them have been addressed by noble Lords. I thank all noble Lords for their varied and incisive comments and useful examples in this valuable, interesting and important debate.

I am particularly delighted that the noble and learned Lord, Lord Hope of Craighead, immediately followed me in this debate; he raised many issues and provided excellent analysis and clarifications. I accept his comments and am delighted that he feels he can support what he has called an imperfect amendment. He is also right in saying, as did the noble Lord, Lord Cormack, and others, that great weight must be given to the issue of torture, which should never be authorised.

Other noble Lords have contributed varied arguments on my amendment. The noble Lord, Lord Bruce of Bennachie, made a useful contribution from the point of view of Scotland, where, interestingly, the Bill was found to be inadequate, as he said. That has been a theme throughout the debate, especially when discussing the Human Rights Act as an inadequate safeguard to prevent criminal offences. The noble Baroness, Lady Chakrabarti, among many others, raised this issue, saying that we cannot legislate in such broad terms; it is not all right to do so.

In thanking noble Lords for participating in this debate, I note that, although I understand what the Minister is saying, the consensus is that there are too many inadequacies. Given those inadequacies, I beg to test the opinion of the House.

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[Baroness Hamwee (LD)]

We have Amendments 27, 29, 30 and 45 in this group. Amendment 27 is the central amendment. I appreciate that it may not be immediately obvious, but it responds to how the Bill is constructed, so I will try to explain.

The Regulation of Investigatory Powers Act—RIPA—allows for a number of authorities to deploy sources. That number is reduced by this Bill, and we support that. However, at the same time, all authorities that remain on the list are relevant authorities, which are also able to grant criminal conduct authorisations. Our amendment would leave out what is a repeal of the list in RIPA—that repeal follows from the Bill’s new Part A1 of the RIPA schedule—but it puts back the police, the National Crime Agency, the Serious Fraud Office and the intelligence services for the purposes of new Section 29B, which is for new criminal conduct authorisations. In short, amendments 27 and 45 would mean that all the authorities listed in Clause 2 are relevant authorities for the purposes of the sections of RIPA that continue and so can deploy sources, but only the police, the NCA, SFO and intelligence services can grant CCAs. Simply taking out a number of authorities from the Bill does not achieve that, though it took me a while to work out how to get there and we got it wrong in Committee. The Minister was kind enough not to rub that in.

At the last stage, the noble Baroness, Lady Massey, and the noble Lord, Lord Dubs, explained the concerns of the JCHR, and they have tabled their amendment again. Other noble Lords had amendments and spoke to concerns about what the noble Baroness, Lady Chakrabarti, called overreach. The noble Lord, Lord Cormack, proposes leaving off the list the five authorities which have caused the most surprise among a number of noble Lords.

At the last stage and on Monday, I felt several times that those of us who have been putting forward amendments to the Bill, in what I described then as attempts to buttress safeguards to the granting of CCAs, while on the whole accepting their use, were thought to be attacking the use of agents. We were not. We understand the safeguards in the Bill and the draft code of practice—necessity and proportionality, as well as the procedural safeguards. Of course, most of us do not have the direct experience of other noble Lords, and most of us could not do what they do or have done. But I hope they do not regard it as disrespectful of them if I say that one of the attributes of this House is that we blend expertise and experience with, I hope, reasonably informed and intelligent generalism. It would not be good for democracy—I am aware of the irony of an unelected politician making the point—if experience in a particular area were not leavened by other experiences, including life experience.

Questioning the authorities that can grant criminal conduct authorisations is not questioning the use of agents. I understand the argument that it may be better not to split activities and that, if criminal conduct is to be authorised, it is better to authorise an agent already placed in the authority, perhaps even an employee. On Monday my noble friend Lord Paddick made the counterargument that, if the situation is so serious that a CCA is contemplated, it should be a matter for the police. It is a judgment between the two positions. I regard the granting of a CCA—permission to commit a crime for the greater good—as so serious that it should be more limited than the deployment of an agent. I do not dispute that some of what the authorities in contention, if I may put it that way, deal with is extremely serious; but I started to wonder why we would take out of the list of those who can deploy a CHIS the Gangmasters and Labour Abuse Authority and the Marine Management Organisation while retaining, for instance, the Environment Agency.

Our other amendments, which would be pre-empted if Amendment 27 is agreed, are to limit the authority of the Armed Forces to the police of the three services— the reference to the intelligence services is unaffected—as we assume, or hope, that it is not intended that every part of the Armed Forces should be entitled to give agents the authority to commit crime. In the case of the Home Office, we would limit the Home Secretary’s right, in effect, to authorising herself to prevent or detect modern slavery and trafficking, picking up on the Minister’s explanation of the inclusion of the Home Office being specifically related to immigration enforcement—she gave an example. I beg to move.

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

My Lords, I thank the noble Baroness, Lady Hamwee, for her explanation of this set of amendments. I shall be brief in presenting Amendment 28. I am a member of the Joint Committee on Human Rights, which considered the Bill and the issue of granting authorisations. This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.

The recent Joint Committee on Human Rights report considers the wide range of public bodies in the Bill unnecessary and unproductive. Criminal conduct authorisations, from a human rights perspective, must first consider whether the exceptional power to authorise crimes to be committed without redress is truly necessary for all these public authorities.