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

Baroness Williams of Trafford Excerpts

Wednesday 18th July 2018 Grand Committee

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[Baroness Williams of Trafford]

That the Grand Committee do consider the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the regulatory framework governing the use and authorisation of investigatory techniques provided for by the Regulation of Investigatory Powers Act 2000, or RIPA, ensures that the public authorities empowered to use these important techniques do so in compliance with the right to privacy under Article 8 of the European Convention on Human Rights. Noble Lords will be aware of how important these provisions are, along with those in related legislation, including the Investigatory Powers Act, to the vital work undertaken by the intelligence and law enforcement agencies, as well as by other public bodies with enforcement or regulatory functions. These Acts allow for the authorisation of investigative techniques that are used by investigators to obtain intelligence and evidence to disrupt the activities of serious and organised crime groups, prevent terror attacks, establish guilt, and ensure that our agencies can locate and safeguard vulnerable and missing people.

The RIPA framework ensures that there are strong, transparent safeguards in place that are appropriate to the intrusive nature of these investigatory powers, so that they are used lawfully and proportionately. This is developed further by the significant strengthening of safeguards and changes to the oversight of all investigatory powers brought about through the Investigatory Powers Act. These strengthened safeguards, therefore, together with the clear requirements set out in the codes of practice and the rigorous independent oversight provided by the Investigatory Powers Commissioner, establish clear limits around the use of these powers, and ultimately provide reassurance to the public that the powers are being used in ways that serve the best interests of us all.

The Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 introduces three revised codes of practice, as well as making some amendments and updates to the public authorities authorised to use surveillance powers under RIPA. The order also makes a minor technical amendment to provisions on the use of combined warrants under the Investigatory Powers Act 2016. I am aware that the noble Lord, Lord Haskel, is keen that we also discuss today the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018, which amends the existing authorisation regime for the use of people under the age of 18 as covert human intelligence sources. I thank him for giving the Committee the opportunity to hear about the extensive safeguards in place.

The revised codes of practice provide guidance on covert surveillance, property interference, covert human intelligence sources, or CHISs, and the investigation of protected electronic information—activities which are regulated by RIPA as well as by the Police Act 1997 and the Intelligence Services Act 1994.

First issued in 2002, the CHIS and covert surveillance codes of practice were last updated in 2014. They, along with the investigation of protected electronic information code, which was introduced in 2007 and has not been updated since, have all been updated, mainly to reflect the changes brought about by the Investigatory Powers Act. These include the creation of the new Investigatory Powers Commissioner, the changes made by the introduction of equipment interference as a technique separate from the existing property interference powers, and the need to mirror the strengthened safeguards for the handling of confidential and privileged material.

Other updates and clarifications have been made to the guidance to reflect and improve current operational practice. We consulted publicly on them at the end of last year. For instance, the guidance on procedures to be followed where investigators use the internet for covert investigatory purposes or where covert surveillance is undertaken by means of drones, and the provisions intended to reinforce the safety of covert human intelligence sources, have all been expanded.

In addition, we are updating the lists of the public authorities and officers able to authorise the use of directed surveillance and covert human intelligence sources. These updates ensure that public authorities can continue to authorise the use of investigatory powers following changes to their organisational structures and remove any authorities that no longer require the powers, and are in themselves a safeguard against the inappropriate or indiscriminate use of the investigatory powers. They ensure that their use is limited to specified public authorities and can be authorised only by specified officers within those authorities who have sufficient authority and expertise.

Lastly, we are correcting a technical error in the Investigatory Powers Act provisions for authorising a combined warrant, reflecting Parliament’s clear original intention that warrants should last for six months, rather than the clearly far-too-short period of two working days. This timely improvement will assist our intelligence services in their work of identifying and disrupting threats to our national security.

All the changes to the codes of practice and the authorisation framework for the powers ensure that the highest standards continue to be required of those using the powers and that they are underpinned by ever-stronger safeguards against their misuse. I commend the order to the Committee and hope that during the debate I can provide reassurance to the noble Lord, Lord Haskel, and others on the use of juveniles as CHISs. I beg to move.

[Lord Haskel (Lab)]

I thank the Minister for introducing the order and for raising the question of the juveniles order. I think it would be of convenience to the Committee if we debated them together.

I sit on your Lordships’ Secondary Legislation Scrutiny Committee. Our task is to consider and scrutinise all the Government’s regulations and orders—what is known as secondary legislation. We report weekly on what we think would be of interest to the House and what gives us cause for concern. Normally we do this on paper, but we thought that the regulation regarding juveniles warranted further debate.

Our committee is a mixed bunch. Our chairman—the noble Lord, Lord Trefgarne—and other members of the committee are here. We are from all sides of the House. There are some old hands, like me, and some welcome new faces. Some have had experience in government. But the one thing that most of us have in common regarding this order—and I include Jane White, our experienced and effective adviser, who worked on the order—is that we are parents and, as parents, we know that young people in their mid to late teenage years are going through a time of great change, when they are vulnerable and often need support. Our concern is that the order does not provide that necessary support and understanding.

We wrote to the Home Office, saying that the Explanatory Memorandum—EM—explained why this extension of one month to four months was administratively convenient. Yes, the Explanatory Memorandum acknowledged the need to take account of the welfare of the young people. But it was not clear how this would be achieved. We wrote to the Minister for Security and Economic Crime about this concern. In reply, he justified the use of these young people, explaining that young people are increasingly both perpetrators and victims of crime and so are increasingly able to assist in the prevention and prosecution of crime. He certainly acknowledged the need to look after the young people’s welfare and said that the code was being updated—that is the code of which the Minister has just spoken.

The Explanatory Memorandum has indeed been updated. It mentions some of the safeguards and says why they are needed. But what is still missing is exactly how the welfare and safety of these juveniles will be achieved.

Working undercover can be made to look very attractive to a juvenile, but what about the risks? There is the risk of being beaten up, of sexual exploitation, of reprisals, as well as the impact on their education and on their mental health. The Home Office reports that it has to deal with an increasing number of mental health problems. The Minister is also silent on the number of young people involved in this undercover work, so we ask: is it right to put one juvenile in jeopardy for the greater good?

--- Later in debate ---

Can the Minister further confirm that this is for serious offences alone and not for general offences? I assume that this is not used for things like shoplifting—that it is for very serious offences. On one level, if that is the case it is good; but, equally, you are then particularly exposing the children, because if they are discovered to be spies and that they are informing, the risk to life and limb is very serious. With that, I look forward to the Minister’s response.

[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in this debate, in particular the noble Lord, Lord Haskel, who introduced some of the committee’s concerns. I apologise for the quite unsatisfactory Explanatory Memorandum, about which the noble and learned Lord, Lord Judge, and to a certain extent the noble Lord, Lord Paddick, gave very good explanations and far more of the context, which is a learning point for me and for the Home Office. I repeat the point that all noble Lords made about the welfare of the child being paramount. The noble Lord, Lord Haskel, said that he is a parent; I am too. It is the most important thing that we are discussing.

I will start by addressing the Regulation of Investigatory Powers (Juveniles) Order 2018, which the Secondary Legislation Scrutiny Committee expressed concern about and which has, in the main, been the subject of interventions today. Over the past 18 months, at the Security Minister’s instigation, the Government have been conducting a review with operational partners of the covert human intelligence source, or CHIS, authorisation framework to consider whether it is working as effectively as it could. This included consideration of the Regulation of Investigatory Powers (Juveniles) Order 2000 which put in place a set of enhanced safeguards that apply specifically to the authorisation of a CHIS under the age of 18, demonstrating that the ability to authorise people under the age of 18 as a CHIS is not something new. That has become clear in the course of discussions.

While investigators might wish to avoid the use of young people as a CHIS, we must recognise that, unfortunately, some juveniles are involved in serious crimes both as perpetrators and as victims. Consequently, young people might have unique access to information that is important in preventing and prosecuting gang violence, terrorism and child sexual exploitation offences. Noble Lords will undoubtedly be aware of reporting in the media recently—this was mentioned in the debate—on the escalating county lines phenomenon which, along with the associated violence, drug dealing and exploitation, has a devastating impact on young people, vulnerable adults and, of course on the communities they affect.

The existing juvenile CHIS regime allows for the use of a juvenile CHIS to be authorised for just one month at a time as compared to a 12-month authorisation for those over the age of 18. This can make their deployment more difficult to manage, which in turn can be unhelpful both to them and to law enforcement. It can also act as a deterrent to law enforcement seeking CHIS authorisation in some circumstances where immediate results might not be obtained during a one-month period, even if a longer, carefully managed deployment could provide a significant operational dividend.

To reduce the pressure to obtain immediate results from such an authorisation while still ensuring the protection of the juvenile, we are increasing the maximum length of a juvenile CHIS authorisation from one month to four months, requiring an authorisation to be reviewed at least monthly which will enable these deployments to be conducted in a more measured way. I will go into more detail on that in a second. Additionally, we have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them, and we are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility, which reflects the increasing independence of young people between the ages of 16 and 18 and that parental authority reduces accordingly—the point about 15 going on 25. I hope that reassures noble Lords that these changes are not about administrative convenience.

We think that these amendments will improve the operational effectiveness of the juvenile CHIS regime, while strengthening the protections for young people in this area and the safety and welfare of young people undertaking this important and dangerous role. This remains absolutely paramount.

[Lord Paddick]

Can the Minister explain how deployments are more difficult to manage if they are authorised for only one month? Presumably the deployment can continue and there is a review by an assistant chief constable or a commander to renew the authorisation, without interfering with the juvenile or the deployment. In those circumstances there would be no pressure to produce results within a short space of time if all we are saying is that the authority can be renewed by this more senior officer at the end of one month on an ongoing monthly basis, but it is very important that somebody of that seniority—that removed from the investigation—objectively decides that that authorisation should continue.

[Baroness Williams of Trafford]

For the convenience of the Committee, I will go through the process. Authorisations for the juvenile CHIS should be granted at an enhanced level, which is set out in annexe A of the code of practice. For example, for a police force this would be by an assistant chief constable, in comparison with the adult CHIS, where an authorisation would be considered by a superintendent. The code of practice requires that, where possible, the authorising officer who grants the authorisation should be responsible for considering subsequent reviews and renewals. That is how each month the whole thing is revisited to continue for a further month, up to four months. But all these processes need to be documented and considered by the handler, the controller and the authorising officer within the public authority and will be fully open to inspection by the Investigatory Powers Commissioner as well. This creates, in our view, a comprehensive framework of safeguards which ensure that the conduct is necessary and proportionate to protect the interests of that young person. With regard to increasing the maximum, they may not be able to finish off what they started within just one month and hence a monthly review, up to four months, is in place. The noble Lord is looking slightly confused so I will let him intervene.

[Lord Paddick]

Can the Minister confirm that the monthly review would be undertaken by an assistant chief constable or commander?

[Baroness Williams of Trafford]

Yes.

[Lord Paddick]

I still do not understand the difference between the current system, where that authorisation would have to be renewed by a commander or assistant chief constable each month, and a four-month authorisation that is reviewed every month.

[Baroness Williams of Trafford]

Under the current system it is only one month, whereas under the new system it would be up to four months but with a review every single month—and, yes, by the same senior officer.

[Lord Kennedy of Southwark]

Maybe I am being daft but I do not see the difference.

[Baroness Williams of Trafford]

I think I understand it. I apologise to noble Lords. The current system is limited to one month. The new system would be up to four months, but with a review every month.

[Lord Paddick]

I am very grateful to the Minister. At the moment, an assistant chief constable or a commander can authorise a juvenile CHIS to be deployed for a month. At the end of that month there can be an application from the handler to the senior officer to renew the authorisation so that it has the effect of continuing for another month, and so forth, for as long as it is necessary. The new system that the noble Baroness is suggesting is a four-month authorisation with a review by the commander or assistant chief constable at the end of each month. What is the difference between the two systems?

[Baroness Williams of Trafford]

I think I have the answer now. Removing the requirement for the activity to be authorised at monthly intervals removes the need for investigators to push for early results to justify re-authorisation—that is what I understand—thereby allowing the juvenile CHIS to be managed in a way that better suits the long-term investigation and reduces the risks to the young person.

[Lord Kennedy of Southwark]

This goes to the point about administrative convenience that was made at the start. It may make it more convenient for the officer concerned, but how does it benefit the child?

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?

[Baroness Williams of Trafford]

I am very grateful to the noble and learned Lord, Lord Judge, because he seems to put things so clearly. I get the noble Lord’s point. Perhaps I may think about it and write to noble Lords, because I now understand exactly the point that the noble Lord is making—thanks to the noble and learned Lord, Lord Judge.

I will now move on to the appropriate adult point. We have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them. I think that I have already said this. We are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility. This reflects the increasing independence of a child approaching the age of 18.

I will now touch on the issue of consistency of approach.

[Lord Paddick]

I am very sorry; I know that it is late. I quoted from the draft revised code of practice. Paragraph 4.3 states:

“Public authorities must ensure that an appropriate adult is present at any meetings with a CHIS under 16 years of age”.


An appropriate adult has to be present at the interrogation of a criminal suspect under 18 years of age. My question was: why is there a difference between the two?

[Baroness Williams of Trafford]

The noble Lord did ask that and I did not answer it satisfactorily. I will write also on that point.

Perhaps I could move on to the oversight regime. The independent oversight of these investigative powers was first legislated for by the Police Act 1997, and the powers are now overseen by the Investigatory Powers Commissioner, who also oversees the powers provided for in the Investigatory Powers Act 2016. The commissioner, like those oversight commissioners his role has replaced, provides the guarantee of impartial and independent scrutiny of the use of these tactics. The oversight commissioners have published reports annually, and, in his final oversight report in 2017, the Surveillance Commissioner commented that,

“standards of compliance have steadily improved in my view, and addressing it generally, they are high”.

The Government accept that the Explanatory Memorandum originally laid alongside the juvenile CHIS order did not go far enough and, as the noble Lord, Lord Haskel, said, the revised version was laid last week. It provides greater detail on the changes made by the order and on the use of juveniles as CHISs more generally. However, I have to make it clear that the Explanatory Memorandum should not be read alone. As I have set out, those charged with authorising and handling young people who act as CHISs have access to extensive guidance available to them to ensure that juveniles are safeguarded. The Explanatory Memorandum is clearly not the right place for the detail that the code contains. Such detailed guidance on the use of these sensitive tactics is necessarily not in the public sphere, as to do so may undermine operational practices and have the potential of putting the CHIS in harm’s way.

The fact that these two orders were laid at the same time is not a fluke—rather, it is the continued development of a suite of statutory safeguards and associated guidance, revised and updated to ensure that these powers are used proportionately and in accordance with the law.

I will now turn to some of the issues which were raised by noble Lords. The noble Baroness, Lady Jones of Moulsecoomb, talked about using children as spies—and this relates to the numbers. I can say to noble Lords that the numbers are extremely low. We do not disaggregate by age, but as I say, the numbers are low.

[Baroness Jones of Moulsecoomb]

How do we know that they are low if the numbers are not kept?

[Baroness Williams of Trafford]

As I understand it, while we do not distinguish between different age groups, we know from discussions with public authorities that the number of juvenile CHISs is low as young people would not normally be deployed in this role, unless there is absolutely no other way to achieve the same result. That is how we know that the numbers are low.

Consideration will always be given to whether the same result could be achieved by other means, and only if it cannot is it necessary to authorise a CHIS. The police and other public authorities must conduct a risk assessment before a juvenile is deployed as a CHIS. That assessment must take into account the risks to their physical and psychological health, as the noble Lord, Lord Paddick, said. The codes of practice make it clear that the welfare responsibilities continue after the deployment ends.

The noble Lord, Lord Paddick, asked about amending the combined warrant provisions. We are making this amendment because one effect of the IP Act is that certain combined warrants that include an authorisation for intrusive surveillance that has been signed by a senior official rather than the Secretary of State would last for only two days. The shorter duration is appropriate under pre-existing legislation, RIPA, where the signature and issue of such an authorisation personally by the Secretary of State is a key safeguard. When that does not happen, the warrant has a shorter duration unless renewed by the Secretary of State personally. However, in the context of such an authorisation being included as part of a combined warrant under the IP Act, which is subject to the additional safeguard of judicial commissioner approval, it is not necessary or appropriate to limit the duration of the warrant to two days.

On consultation with organisations involved in safeguarding, there is no requirement to consult publicly on changes to the 2000 order. We did consult broadly with the operational community and the Investigatory Powers Commissioner’s office, which was involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS and duties to safeguard children and young people. This was taken into account as part of the consultation with intelligence and law enforcement agencies. We consulted on the changes to the code of practice in late 2017 and, while that version of the code did not reflect the changes we have since made in respect of juvenile CHISs, no respondents to the consultation commented or raised any concerns about the use of juvenile CHISs more generally.

I think that I might finally be able to answer the question of the noble Lord, Lord Paddick, about who can be a responsible adult for a juvenile under the age of 18. The existing 2000 order puts in place a requirement that all discussion with a juvenile CHIS under the age of 16 must take place in the presence of an appropriate adult, who must be a parent or guardian of, or person with responsibility for, the young person, or any other adult. The order strengthens the safeguard by amending the definition of “appropriate adult” to prevent a person with no links to the young or any appropriate qualification from acting as an appropriate adult. In future, an appropriate adult would have to be a parent, guardian or person, such a youth social worker, who is otherwise qualified to represent the young person’s interests. The appropriate adult is an important safeguard to ensure that the young person is comfortable with what they are agreeing to. I have talked about the distinction between 16 year-olds and 18 year-olds and those aged under 16. Although there is no statutory requirement for those aged over 16 to be accompanied to meetings, the decision on whether to inform a parent or guardian of a source aged over 16 is taken on a case-by-case basis.

All noble Lords have referred to human rights. All public authorities must act in compliance with the ECHR as a result of the Human Rights Act 1998. The human rights obligation has been in force since 2000. As a result, the human rights of the CHIS must be complied with.

The noble and learned Lord, Lord Judge, asked about the double lock of a judicial commissioner’s approval. The Investigatory Powers Act 2016 followed three reviews into powers relating to obtaining communications. The Act, and therefore the safeguard of judicial commissioner approval, relates to those powers and does not extend to the powers being debated today.

[Lord Judge]

I thought that these draft regulations were meant to make things better. If it was thought to be a good idea, surely it would not be beyond the bounds of regulation-writing to write the regulation accordingly. I am on my feet, which I know I should not be. It will not be beyond the bounds of difficulty or take very long for a record to be made of every CHIS aged under 18—although not to find out how many CHISs have been aged under 18 in the past, because no records have been kept. Then we will know the facts. Next year, we should know and be able to come back and say, “Good heavens, there are far too many”, or, “Okay, there were only two, and they have been looked into”. I should have limited myself to my first point.

[Baroness Williams of Trafford]

I take the noble and learned Lord’s point.

The noble Baroness, Lady Jones, asked about undercover police work. The CHIS code confirms that police officers deployed as undercover officers in England and Wales must comply with and uphold the principles and standards of professional behaviour as set out in the College of Policing code of ethics introduced in 2014. The code specifies that officers must,

“not engage in sexual conduct or other inappropriate behaviour when on duty”,

and,

“not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power”.

Of course, this instruction applies as much to undercover officers as to any law enforcement officer.

The noble Lords, Lord Paddick and Lord Kennedy, asked about the best interests of the child. The code of practice requires that any public authority deploying a CHIS takes into account the safety and welfare of that CHIS and that a risk assessment is completed by the authorising officer before any tasking takes place. The order retains the requirement of the 2000 order that these risk assessments for juvenile CHISs are enhanced risk assessments. Furthermore, the code requires that the ongoing welfare and the security of the CHIS after cancellation of the authorisation be considered and reviewed throughout the duration of the deployment and beyond. These authorisations must be reviewed at least monthly and records maintained for at least five years.

The noble Lord, Lord Paddick, asked whether we are changing this because of law enforcement agencies. This is not about seeking to legitimise practice that was non-compliant with previous codes of practice; it is about reflecting the fact that new investigative techniques are being used by the police. He asked about the code changes. The overall impact of the changes to the codes will be to strengthen the safeguards provided in the codes and improve the guidance for practitioners. The changes reflect current practice and aim to improve operational practice, including expanded guidance to assist investigators in their use of these powers in an online context. It is important that investigators are able to make full use of the internet to assist their work, and equally important to take into account the privacy of people using the internet.

The noble Lord, Lord Kennedy, asked a very pertinent question about why parents might not be involved. It is true to say that in some circumstances it may not be appropriate that parents of a young person deployed as a CHIS are informed: for instance, where they support the ideology or, indeed, the criminal intent of those against whom the juvenile might be employed. He asked whether it is just for serious offences. There is no specific limitation on seriousness, but the strict tests of necessity and proportionality apply—the point about shoplifting should be seen in that context. He asked about the differentiation between “should” and “must”. The 2000 order requires that an appropriate adult “must” be present, and we have not changed that requirement.

I apologise once again for the less than satisfactory quality of the Explanatory Memorandum and for my inability to answer certain questions, but at this point I beg to move.

[Baroness Jones of Moulsecoomb]

Forgive me, I know it is late—and forgive also my ignorance. But, given that there are some unknown components in this, does that mean that the Government will pause?

[Baroness Williams of Trafford]

No. What I have offered to do is write to the noble Baroness and to noble Lords whose questions I have not fully answered. Generally, in Committee, that is accepted—but the noble Baroness may not accept it.

[Baroness Jones of Moulsecoomb]

I was hoping that the answer would be that these problems would be corrected in a new draft.

[Baroness Williams of Trafford]

No—what I was offering was to write to noble Lords on the points I could not fully answer.

Motion agreed.