Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Lord Haskel Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I declare an interest as a former controller of covert human intelligence sources—CHISs—or police informants as they are otherwise known, although I have never controlled child CHISs. As I approach my fifth anniversary in this place, I hope that noble Lords will accept that tabling a regret Motion is not something I do lightly. The Government have introduced regulations that appear to weaken and/or not provide enough protection for children employed by the police as CHISs. Both the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights have raised concerns about the whole regime of police using children as CHISs. As a result, on 18 July, we debated a take-note Motion, moved by a member of the Secondary Legislation Scrutiny Committee, in Grand Committee.

There are three main concerns. The first is that a child aged 16 or 17 can be recruited as a police informant without a parent, guardian or appropriate adult being present, even though it is illegal to interview a child of those ages under caution about a criminal offence without such a person being present. The parent or guardian of a child under 16 does not have to be present when a child is recruited as a police informant but, in that case, an appropriate adult must be.

Secondly, the period for which a child can be authorised as an informant by these new regulations has been extended from one month to four months, although the authorisation has to be reviewed every month. The authorisation must be given by a very senior police officer or equivalent, but to date we have not been able to get a clear answer on what the difference is between a one-month authorisation being extended on a monthly basis and a four-month authorisation that is reviewed monthly. Either the safeguards are being weakened, in that the review is less thorough or is conducted by a lower-ranking officer, or there is no need to change the previous arrangement, where an authorisation had to be extended monthly.

The explanation—knowing that the authorisation is only for one month could limit how the child could be deployed—does not hold water. I speak from operational police experience. In seeking the original authorisation, the deploying officer could explain that the deployment is going to last several months and that the officer will be asking the senior officer to extend that authorisation. The senior officer could then indicate whether he would be minded to do that, taking account of how dangerous the assignment is and the impact on the child. In my experience, it would be much easier for a senior officer not to extend an authorisation than it would be for him or her to pull the plug on a four-month authorisation which he or she had already given, as doing so would not call the original authorisation into question.

At the same time as this apparent weakening of the safeguards, the Minister says people are becoming involved in more serious crime, such as child sexual exploitation, violent gangs, drug dealing and terrorism. It therefore appears that the dangers faced by child CHISs is increasing while the safeguards are either insufficient or being weakened.

The third issue concerns Article 3 of the UN Convention on the Rights of the Child, to which the UK is a signatory. It states:

“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 text refers to the best interests of “the child”—not “all children” or “society as a whole” but, in this case, to the child being used as a child informant. When can it be in the interests of that child to be asked to return to the paedophile, the criminal gang, the county lines drug dealer or the terrorist group in order to provide information to the police, given that the child is obviously in danger in those situations? These are not my concerns alone; some are shared by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights.

Before debating the take-note Motion in Grand Committee, I gave notice to the Minister of the points the Government should cover in that debate—namely, the three issues I have just outlined. Despite this, and numerous interventions during that debate, the Government appeared to be unwilling, or unable, to answer the questions. Why were child informants afforded less protection than criminal suspects? What is the difference between extending a monthly authorisation and a four-monthly authorisation reviewed monthly? And how is the deployment of a child CHIS compliant with the UN Convention on the Rights of the Child?

To be fair to the Minister—who is not only very competent but somebody I like on a personal level—she is not the only one. There is ongoing correspondence between the chair of the Joint Committee on Human Rights and the Minister of State for Security and Economic Crime; the chair has not yet received satisfactory explanations from that Minister either.

Last week, I had the pleasure of meeting both Ministers together, at the same time; the official from the Home Office who is leading on this issue was also present. At this meeting—albeit that it was a meeting for another purpose, at the end of which I ambushed them—I again set out the three issues on which we have yet to receive a satisfactory answer.

There are no longer any excuses for the Government not to answer these questions. Our duty in this House is to hold the Government to account. When they are unable or unwilling to account for their actions, as happened during the take-note Motion debate, the Government cannot be expected to get away with it. My regret Motion is as much about sending a message to the Government that this House will hold them to account, despite their inability or unwillingness to account for their actions, as it is about the substantive issues. That having been said, there are other noble Lords, outside organisations and members of the public who are very concerned about the whole idea of using children as police informants. Indeed, one children’s organisation is crowdfunding to take the Government to judicial review over the use of children as CHISs, which it believes is incompatible with the United Nations Convention on the Rights of the Child.

There are worrying signs here of a direction of travel. Not only do the Government appear to be sacrificing the rights of children in exchange for information, but they appear to be prepared to sacrifice people’s right to life by not insisting on death penalty assurances when the UK provides evidence to foreign law enforcement bodies—not just in one-off cases, but if necessary to secure data exchange treaties. The latter issue is for another day, but let us hope the Government are not prepared to sacrifice peace in Northern Ireland in exchange for a Brexit agreement. I beg to move.

[Lord Haskel (Lab)]

My Lords, I am a member of your Lordships’ Secondary Legislation Scrutiny Committee, and somehow it has fallen to me to voice the concerns of the committee. It was I who spoke in the debate in July to which the noble Lord, Lord Paddick, referred. This order was presented to the committee as a matter of administrative convenience: extend the authorisation from one to four months and you reduce administration—simple. Perhaps it is because many of us are parents that we wondered why juveniles were being used in covert activity in the first place. The Explanatory Memorandum spoke of safeguards but not how they would be implemented, and it was silent on the number of juveniles involved. We requested more details, but we were still not satisfied, and so the committee decided to report this regulation to the House, both in our weekly report and in a Motion to Take Note—that was the debate in July.

During this process, it became apparent that juveniles were being used for far more dangerous activities than just checking on shopkeepers selling alcohol to minors, including activities relating to serious crime, drugs and terrorism. These activities put them in danger of violence and sexual assault, and all sorts of associated mental, physical, psychological and educational problems. Together with other noble Lords, we spoke of our concerns in the debate in July. The Minister sought to reassure us with more detailed safeguards, but many of us remained concerned.

Meanwhile, I was contacted by Rights Watch UK. It was concerned that human rights and the rights of the child were being ignored, and suggested that we should refer this to the parliamentary Joint Committee on Human Rights. After the debate, your Lordships’ committee did this, and the Joint Committee took it up with the Government through a series of questions. Its members share our concerns about the safeguarding of juveniles and what they call scope creep. As the noble Lord, Lord Paddick, said, this correspondence continues and there are meetings. This view is shared by another children’s charity: Just For Kids Law. It has contacted me and its lawyers have issued a pre-action letter to the Home Office seeking judicial review on this matter. During this time, there has also been press coverage, and I have received several letters from concerned parents.

As I said, the history is important because, at each stage, the Government have introduced further support for the juveniles and more detailed safeguards. For example, the numbers involved are now recorded; the authorising officer will weigh the intelligence benefits against the potential negative impact on the juvenile; and there will be more judicial and police scrutiny, and at a higher level. However, we remain unsure how consistent this will be across the various police forces and how it will be properly carried out.

The task of your Lordship’s Secondary Legislation Scrutiny Committee is to judge whether these reassurances and changes are sufficient. But it is for the House to decide whether this is a proper activity for juveniles and whether our police, judicial and security services provide adequate support and supervision.

This is not a party-political matter. As the noble Lord, Lord Paddick, explained, it is a security issue, a human rights issue and a rights of the child issue. Before the Government ask us to enact this legislation, with the increased assurances which they have given, I hope they will wait to see what comes out of the human rights correspondence and the judicial review. I feel sure that this is the view of most people in the House, and I look forward to hearing what the Minister has to say.

[Baroness Hamwee (LD)]

My Lords, I am pleased that my noble friend Lord Paddick has moved this Motion. I should declare an interest: I am a trustee of the organisation Safer London, which works to prevent and address young people’s involvement in crime, including running a gang exit programme for the Metropolitan Police and now MOPAC. In that role, I recently undertook some quite basic safeguarding training; safeguarding is of course very relevant to this issue. It seems to me that the thinking about safeguarding has developed; I wonder whether the thinking about the use of young people in the role of covert human intelligence sources has developed in tandem.

I asked somebody who I know through Safer London about this issue, and I was given the following example, which I think well illustrates the concerns that have been expressed. A young woman of 17, who was described to me as “on the edge of care”, whose parents were separated and who had been between boroughs, was exploited by a man who—this is very common—she thought of as her boyfriend. He was selling a group of girls, including her, for sex. The police were looking for information on him and she was left in her situation so that she could provide information. In other words, she was exploited by him and continued to be exploited by him, and was, arguably, exploited by the police. Eventually, she witnessed a murder. She was drawn into it, and not just as a witness, as she was asked to dispose of clothes and other items afterwards. How was her consent to this tested? No significant adult in her life knew of her involvement, and we must ask ourselves what qualifies a police officer to make the assessment that is needed here. This is obviously a question of training, but the officer making the assessment must also be independent from the particular investigation. I, for one—and this is nothing other than common sense—find it hard to believe that officers can easily put aside their loyalties to police colleagues in the investigation for which they have responsibility.

What is the position of corporate parents of a child in care? So many young people who are caught up in crime are, or have been, in care, or have low-level learning difficulties. Crucially, what support is given after the event? This is no doubt one of those muddy situations: a perpetrator may also be a victim, or a victim may be a perpetrator. I am told that it is not that uncommon for the police to offer witness protection in exchange for assistance—or, at least, they are very often asked to do this. As I say, it is quite a muddy situation.

My noble friend’s Motion regrets the lack of consultation with organisations concerned with human rights and the welfare of children. I suspect all of them would have raised similar points, and probably made the point that 16 year-olds are often not very mature, and indeed, neither are 18 year-olds. I do not know where vulnerability stops. To indicate how vulnerable young people might feel, I gather that it is not unusual for someone who was a gang member and is in a young offender institution to request segregation—solitary, in other words—because of fear of other gang members in the same institution.