Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Bishop of Durham Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[The Lord Bishop of Durham [V]]

My Lords, I too would like to welcome the noble and learned Minister to the House and to his new role. Not many find their maiden speech to be that of introducing a Bill to the House, and I congratulate him on the necessarily blended speech.

I welcome the Government’s move to provide a statutory basis for covert human intelligence sources to participate in criminal conduct, where it is necessary and proportionate to do so for a limited set of specified purposes. We recognise the heavy duty placed on government to protect its citizens, and this Bill is a necessary step so that those undertaking these activities with a view to protecting the public can be clear in their status and duties.

However, while welcoming the intent behind this Bill, I am concerned that safeguards should be properly scrutinised, in particular when they concern the treatment of children. Sadly, we know that children are used and abused in evils such as county lines, child sexual abuse and other serious crimes. In facing these, there is an understandable temptation, however small, to make use of children as assets for the forces of law and order. We should never lose sight of the fact this places and keeps children in situations of harm and of increased risk. The primary concern must always be that, when children find themselves in vulnerable situations, we look after them as children first and foremost rather than assets for fighting organised crime. We must guard against the temptation to undermine that essential principle in the pursuit of security. Regardless of the children’s age—I note that they are usually 15, 16 and 17 and few in number—we must still treat them as legally children. They are not to be used and must be protected.

Therefore, how can using a child as a CHIS and in doing so placing them at greater risk of harm ever be in their best interest? Allowing these children to act illegally only worsens this. It is preferable for children never to be used. I am confident that the majority of noble Lords would agree, including the Minister. However, I recognise that there may be rare instances in which children are being used. If this is to be the case, then fixed protections need to be put in place. Although there are guidelines in the code of practice for children used as CHIS, this requirement should be made statutory so that there is sufficient legal weight. Vague phrases like “exceptional circumstances” must be met with explanation and guidance rather than leaving it open for interpretation and even manipulation.

We trust our law enforcement agencies to act within the law, but we must protect them from themselves when the temptation arises to use children for what appears a greater good. It is unfair on those agencies not to provide clear legal parameters by which they must operate. Let us not settle for compromising the safety of children for the pursuit of a safer nation, for is it not for those very vulnerable children for whom we seek to create this safer nation? If on rare occasions children are to be used as covert human intelligence sources, there must be clear and meaningful safeguards set out in statute. I will be looking in Committee to support amendments in this space.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Bishop of Durham Excerpts

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

When it comes to county lines or any other real and pressing danger to our communities, it would be perfectly possible for state agencies to engage and employ 19, 20 or 21 year-old people who look younger than they are. That would square the circle without doing this terrible injustice—this enormous breach of human rights—and putting our children and young people in danger. So, I urge all Members from across the House to get behind Amendments 12, 13 and 14 and to follow the lead of the noble Lord, Lord Young.

[The Lord Bishop of Durham [V]]

My Lords, it is humbling to follow the passion and wisdom of the noble Baroness, Lady Chakrabarti, and the wisdom of the noble Lords, Lord Young of Cookham and Lord Cormack, and the noble Baronesses, Lady Massey of Darwen, Lady Kidron and Lady Hamwee. I associate myself strongly with the points they have made.

I speak in favour of Amendments 12 and 14, in the names of the noble Baroness, Lady Massey of Darwen, and the noble Lords, Lord Dubs and Lord Cormack, to which I have been pleased to add my name. I also speak in favour of Amendment 24, whose sponsoring group, made up of the noble Baronesses, Lady Kidron and Lady Hamwee, and the noble Lords, Lord Kennedy of Southwark and Lord Young of Cookham, is wonderfully cross-Bench.

Therefore, it will be clear that my concerns relate to the situation of those who are children in law because they are under 18. My absolute preference lies with Amendment 12, which would make it illegal for anyone under 18 to be used as a CHIS. However, concerned that this will not be agreed, I wish to ensure that full safeguards are in place for those who are children in law. In doing so, I recognise, as we all do, that the number who are so used is very small and are mainly 16 to 17 year-olds.

I apologise to the House that, due to the time taken in Committee, it proved impossible for me to speak on the two amendments to which I had added my name when they were finally taken, and I am very grateful to my right reverend friend the Bishop of Carlisle for speaking for me.

I am here to reiterate the simple, immovable, moral truth that children must be treated as children, as many of my noble friends argued in Committee. It is not a question of ifs, buts or whens. We, as adults, have a moral obligation to protect children and safeguard their care and well-being in all respects: physical, mental, social and spiritual. Knowingly placing a child in harm’s way and encouraging them to remain in harmful situations or with harmful behaviours may be in our interest, but it is not in the child’s best interests. This is exacerbated by the likelihood that the small number of children recruited as CHIS are from a potentially vulnerable background and are already deeply damaged. We should be seeking their healing, not risking damaging them further.

In Committee, my noble friend the Minister said that

“becoming a CHIS can, potentially, offer a way”

for a child

“to extricate themselves from such harm.”

While this sounds like a laudable thing, before being able to extricate the child, are we not potentially exposing them to more harm by encouraging them at times to remain involved in a criminal situation or behaviour? The Minister also argued in Committee that

“appropriate weight is given to a child’s best interests”,

but being a CHIS is surely never in a child’s best interests. The use of child CHIS was justified in Committee through how it can help to remove them and others

“from the cycle of crime”.

However, is the hypocrisy here not evident in first encouraging the child to continue in criminal behaviours and settings? We rightly condemn the use of child soldiers around the globe for the atrocity that it is. Let us not slip into a dangerous grey space where we permit the use of children to fight our battles against criminal gangs and county lines. Let us protect their vulnerabilities.

The various arguments made in Committee conveying how the use of child CHIS has not yet been abused were exactly what we wished to hear; why not ensure that this will always be the case? I note the remarks of the Minister that

“the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process.”—[Official Report, 3/12/20; col. 937.]

It is reassuring to hear that that has been the case to date. However, the purpose of this Bill is to put the future use of CHIS on a clear and consistent statutory footing. It seems to me that placing in this Bill the most comprehensive safeguards possible when it comes to children is wholly in keeping with the Bill’s overall purpose. It is a necessary step for keeping the welfare and well-being of children as a primary consideration.

I welcome the Government’s recognition in their Amendment 26 of the need to have authorisation in the Bill and not simply in a code of practice. I also welcome the need to protect those aged under 16 more fully than 16 and 17 year-olds. However, I remain concerned that the proposals in Amendment 26 do not go far enough—as already argued by the noble Baronesses, Lady Kidron and Lady Hamwee. I want to see the independence of a judicial commissioner in place for the authorisation of those aged under 18 as CHIS, with the parameters laid out in Amendment 14.

Amendment 24 has also been very carefully worked through by a wide range of organisations and people involved in concerns around the protection of the child. Therefore, I continue to support both these amendments. They recognise that our first and most important duty is to protect and support children and vulnerable people. If the mind of the House is tested on these amendments, I shall vote in favour of them. If the House supports them, I hope that the Government will undertake to accept them.

In relation to the proper protection of children, I reiterate my preference for Amendment 12. It would prevent the granting of criminal conduct authorisations to any child in clear and unambiguous terms. This is the clearest and simplest way of guaranteeing the protection of children and resisting the temptation to use them as assets in the fight against crime. I recognise that many in this House may see that as too absolute, thus I am also glad to put my name to Amendment 14, which would at least establish more effective safeguards for those aged under 18 in ensuring prior judicial approval that explicitly considers the potential for both physical and psychological distress.

I also support Amendment 24, which lays out specific and clear additional safeguards to ensure that children can be used only when there is no foreseeable risk of physical or psychological harm—or, I wish it also said, spiritual harm. It also lays out that the circumstances should occur only as a last resort and with the oversight of an appropriate adult. Combined, they amount to much better protections than those in Amendment 26. It is inherently wrong for those aged under 18 to be used as CHIS, hence my support for Amendment 12. If not that, we need the amendments that protect children most effectively. Let us keep the best interests of children at the fore.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham. His speech was passionate, as was the speech made by the noble Baroness, Lady Chakrabarti. I have raised this issue here in your Lordships’ House several times over the years; it has never caught fire in this way. I do not understand. The noble Lord, Lord Young, spoke about public incredulity. If I ever mention this issue to members of the public, they are astonished that it was allowed to happen. This issue has caught fire because a Tory Lord—an hereditary Baronet—raised it in a very principled way. Suddenly, people heard it. I would welcome comments on why it was not heard from a Green. Why is this? Do people think I am too radical? Do they think I am making it up? I have no idea. I am sure that some noble Lords might like to comment on that.

In a previous day of debate this week, the noble Lord, Lord Cormack, corrected my use of “police spies” as being too limited because we are debating spying not only for the police but also for the security services and a host of other organisations. I accept that telling off in good grace. I could just use “spies” in the hope that it does not sound too glamorous.

On the appropriate words to use, the phrase “juvenile CHIS” is a fantastic piece of wordsmithing because it so effectively obscures what we are actually talking about. These are child spies. They are children and young people who have got themselves into some sort of trouble. When they are caught by the authorities, instead of being rescued from that dangerous situation, taken into care and helped to rehabilitate themselves and change their lives, they are being returned to harm’s way. They are put into what could be deadly danger. How is this even conceived of by the Government, the security services and the police? How on earth can they not see, as the noble Baroness, Lady Chakrabarti, said, that this is state-sponsored child abuse—a phrase I have used before.

After years of probing the Government on the use of child spies, I am yet to see or hear a single example of how the risk to the child is justified. I have heard stories of children being used, especially for county lines policing, where gangs use children and young people to extend their networks into smaller towns and expand their reach. However, we all should know that closing down any drug ring or network is a very temporary hitch in the supply of and demand for drugs. A rival or reconstituted gang will be up and running in days, if not hours. We have to understand that using children in this way is unacceptable because, in addition to everything else, it does not work.

That moves us on to drug policy, which needs drastically changing. I will look to the noble Lord, Lord Young, to pick that up in future. We can work together on amending drugs law because that urgently needs work.

I also deeply regret that the scope of this Bill is limited to prevent us banning the use of child spies entirely, but at least we can prevent them being permitted and encouraged by the authorities to commit further crimes. Obviously, I support Amendments 12 and 13, which have my name on. I also support Amendment 14. I am slightly iffy on Amendment 19, but I can see its value. If the noble Lord, Lord Young, does not push his amendment to a Division, I will vote for Amendment 24 in the name of the noble Baroness, Lady Kidron, because it is of value and it is better than nothing—but it is not as good as Amendment 12. I wish that the Labour Front Bench supported Amendments 12 and 13.

I was brought up in a Labour-loving household. My parents voted Labour all their lives, and their perception of the Labour Party was that it would always fight the big battles for the little people and that we could trust it to do the right thing. I would rather see a Labour Government than a Conservative Government, but, quite honestly, I feel that Labour has failed us here and I am extremely sad about that.