Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

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

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.

[Baroness Chakrabarti (Lab) [V]]

My Lords, like my noble friend Lord Dubs, I can be short in the light of some outstanding contributions that we have heard from Members of your Lordships’ House. The more I listened to those arguments, the more I was convinced that there needs to be some kind of limit on the nature of criminal conduct that can be authorised with—and I repeat—total advance immunity from criminal liability or civil suit. If in Canada, why not here? It was the noble Lord, Lord Anderson of Ipswich, who dealt with the so-called Sopranos argument on testing with particular dexterity.

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Moved by

[Lord Dubs]

39: Clause 1, page 2, leave out lines 45 to 47 and insert—
“(b) consists in conduct—(i) by the person who is so specified or described as the covert human intelligence source to whom the authorisation relates, or(ii) by another person holding an office, rank or position within the public authority making the criminal conduct authorisation, which assists or encourages criminal conduct by the covert human intelligence source to whom the authorisation relates; and”Member’s explanatory statement
This amendment clarifies who can be authorised to commit criminal offences.

[Lord Dubs (Lab) [V]]

My Lords, so far we have been debating the nature of the criminal offences that may or may not be authorised. Amendment 39 would clarify who can be authorised to commit criminal offences. As I made clear on earlier amendments, I am a member of the Joint Committee on Human Rights, and my contribution to the debate on this amendment stems from the report by that committee. That report has been referred to by many noble Lords and indeed has almost served as the text for some of the debates. That is a credit to the work of the committee, which I think is very positive and influential.

The committee found the Bill’s definition of what amounts to criminal conduct for the purpose of a CCA “unhelpfully obscure”. It noted, in particular, that it includes conduct in relation to a CHIS. The expression “in relation to” is one of those phrases that can mean almost anything and is capable of all sorts of interpretation, narrow and wide. My noble friend Lord Rosser used a similar phrase which was a bit vague in an earlier debate. I repeat that the expression “in relation to” can mean almost anything.

Why are the Government doing this? I will use an American expression that we all know and which I learned many years ago: mission creep. One sets out to do something but inevitably, in trying to get the powers to do that, one expands what one wants to be able to do, sometimes beyond what is reasonable or could have been envisaged at the outset. This amendment relates to what I would call mission creep on the part of those who drafted the Bill.

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[Baroness Williams of Trafford (Con)]

I say again that each situation will be different, but I understand the noble Lord’s point that if the CHIS is acting as instructed, but the handler has gone beyond where they should have gone, it would be the handler’s authorising officer who would be liable for that activity. There would be an investigation, but at that point, we are talking about a theoretical case. If it was the handler who had acted beyond their purview, the handler would be liable for that handling activity, or the authorising officer. It is late, I am tired, and I have suddenly forgotten my thread.

[Lord Dubs (Lab) [V]]

My Lords, I am grateful to all noble Lords who contributed to the debate. I have to lead with what the Minister said. I feel that her interpretation of the part of the Bill we are talking about was nearer to the spirit of the amendment than the wording of the clause itself. That is why I want to have a look at it. As for what my noble friend Lord Sikka said, I was not aware that a person in the Bill could be a corporate body. I fear he has an important point, but maybe it is not quite in the scope of the Bill. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

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

My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.

Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:

“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,


which has already been quoted by the noble Lord, Lord Young,

“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”

The best interests of the child must be at the core of all our concerns.

The JCHR report concludes:

“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”


The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.

I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.

The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.

I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?

Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.

[Lord Dubs (Lab) [V]]

My Lords, when I originally looked at this Bill and thought about it in relation to children, I felt that there might be some justification for using children as CHIS in the most exceptional circumstances. I am now doing something that is not very fashionable. I am changing my mind in the light of what I have heard in the debate so far, especially from my noble friend Lady Massey and the noble Lord, Lord Young. I now believe that there should be no circumstances in which children should be part of this process. It is wrong and cannot be justified. The highest standards of human rights would be fully met if we said that children should be totally exempt. There should never be any circumstances in which the end would justify the means. I have been persuaded by the argument. Maybe one does not often admit this publicly, but I am prepared to do so here and now.

[Baroness Doocey (LD) [V]]

My Lords, I wish to speak in favour of Amendment 52. I too support the comments made about children by previous speakers.

This amendment seeks to place in law safeguards for young people, for those who have been trafficked and for other vulnerable individuals. There is a real risk to vulnerable adults, as well as to children, because victims of modern slavery and trafficking are not always recognised as such. This amendment puts safeguards in place for them, as well as for minors.

I share the same fundamental concern as the noble Lord, Lord Dubs. Children should not be placed in harm’s way by the state or in the pursuit of any other alleged greater good. It is the job of the state to protect children, not to deploy them as spies.

I want to address directly the argument made on this point by the Minister at Second Reading. She said that, in practice, juveniles are not asked to participate in criminality in which they are not already involved. Surely the fact that children are already involved in crime does not make them any less worthy of protection. We like to say that with rights come responsibilities, but that maxim misunderstands rights. Rights are absolute and children should expect the absolute right to basic protection from this country. That protection should not be contingent on some invented responsibility to help the police by acting as a spy. Children seldom choose to become involved in gangs. Many are vulnerable. Many have been abused. Some are victims of trafficking. Others have been appallingly neglected both by their families and then by the state. It is not right to view them as having chosen a lifestyle of criminality and thereby complicit in their own fate.

Just as the Modern Slavery Act acknowledges that children cannot consent to their own slavery, we should recognise in the Bill that children do not put themselves into these dangerous situations. They should not be asked to take advantage of danger in the interests of police investigations. These young people are at very high risk of long-term physical and emotional harm from the experiences they have already had. Being designated a CHIS puts them at hugely increased risk. I find it indefensible that 16 and 17 year-olds can be brought into this highly dangerous territory of spying for the state with no appropriate adult to help and support them. The age of majority in this country is 18: 16 and 17 year-olds are children and these particular 16 and 17 year-olds are very vulnerable children. It is completely unacceptable for them to be co-opted by the police for spying without the same representation that they would enjoy if they were arrested for some minor offence, such as theft.

The police do a very difficult job. We are all in their debt for protecting us as individuals and as a society. The need to get a result can sometimes blur boundaries in the pursuit of solving a crime or bringing a prosecution. The genre of police drama would scarcely be so rich without the reality that rules can sometimes be bent and occasionally broken.