Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Bishop of Carlisle Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

My noble friend Lady Doocey will speak to proposed new subsection (8B) in our amendment, but in brief, if an authority is in a position to grant an authorisation it should make the assessment of the CHIS with regard to the issues to which I have alluded. If concerned, it must, with the person’s consent—consent is important —refer them to the national referral mechanism.

[The Lord Bishop of Carlisle]

My 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.

[Baroness Bull (CB)]

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.