Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

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

Lastly, Amendment 14 talks about a judicial commissioner. I am none too sure, as we discussed the last time we debated this Bill, whether the judiciary is ideally placed for some of these decisions. At this point, I am going with the Minister. I will listen carefully, but let none of us forget that whatever actions are taken are often taken in the interests of society, given the danger from terrorism and all that area of life.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.

[Baroness Bull (CB)]

I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.

I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.

We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.

Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.

Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.

Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.

The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.

Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.

--- Later in debate ---

We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.

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

My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Short and sweet. The next speaker is the noble Lord, Lord Russell of Liverpool.

--- Later in debate ---

Amendments 13 and 14 not moved.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.

Amendment 15

Moved by