Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Lord Kennedy of Southwark Excerpts

Wednesday 18th July 2018 Grand Committee

[Lord Paddick]

I am very grateful to the noble Baroness, but I think it is important that that misinterpretation is not put on it.

As the noble and learned Lord, Lord Judge, said, yes, the Explanatory Memorandum is clearly inadequate, as is the letter from the Minister. It is almost contemptible in failing to address these issues. Clearly, it would be different if the Grand Committee had known in advance about these independent inspections of the use of CHISs, and the particular importance that inspectors pay to juvenile CHISs; but the fact remains that these inspections are post-event. These are not procedures that could prevent a juvenile being put into a dangerous situation beforehand.

The managing of informants, or CHISs, as they are now called, is one of the most sensitive areas of policing, fraught with danger—and that is just for adults. Using juveniles as CHISs is an order of magnitude more dangerous, as other noble Lords have said. Young people, through their immaturity and inexperience, are far more at risk when being employed effectively as spies, as the noble Baroness said, in criminal enterprises. They are far more likely to make mistakes and to blow their cover than mature and experienced adults. Law enforcement and other public agencies have always recognised this, and that is why, in the police service, the extraordinary step—and it is extraordinary—of employing a juvenile CHIS has to be authorised by an assistant chief constable, a commander or a more senior officer.

Until now, the authority has lasted one month. Clearly, the longer the CHIS is undercover, the greater the chance of being exposed and the greater the potential psychological strain and therefore risk of harm the young person might be subjected to. For that to be extended to four months without an officer of such seniority being asked to renew that authority is putting the young person in grave danger, in my personal and professional judgment. These decisions were always taken with the greatest care and consideration, and it was ensured that the case for engaging and renewing was taken by a very senior officer, several levels above the investigating officer, and therefore with objectivity and independence, crucial to ensure the safety of that young person.

The world is a much more dangerous place than it was when I was a police officer, let alone a detective chief inspector. As the noble Lord, Lord Trefgarne, has said, the Explanatory Memorandum talks about child exploitation, terrorism and gang and drug crime involving more and more young people. There is a real danger that juvenile CHISs could become victims of child sexual exploitation, or the discipline meted out to members of gangs by other members of the same gang, including sexual assault, rape and being stabbed in the leg. These levels of violence among juveniles were rare in my time as a police officer but are now far more common.

At a time when the threat to CHISs is increasing and the threat to an immature and inexperienced CHIS is even greater, the Government are seeking to reduce the safeguards for these vulnerable young people. That is unacceptable. I do not want it on my conscience that a juvenile CHIS has been killed or seriously injured as a result of relaxing the necessary safeguards that are in place at this time. I seriously ask the Government to rethink this provision, not least because the consultation on these changes does not appear to have included organisations or specialists in the welfare of children such as those who work with gangs, ex-gang members, or child psychologists.

Given more notice and time and at a different point in the parliamentary timetable, I would have prayed against this provision and divided the House. It is not too late for the Government to withdraw this order, at least until the Minister has satisfied herself that appropriate advice has been taken on the potential risks associated with these changes.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the Minister for presenting the order to the Grand Committee. I also thank my noble friend Lord Haskel for moving his Motion and, in doing so, highlighting the issues of concern that have been raised by the members of the Secondary Legislation Scrutiny Committee in its 35th report published on 12 July. They have highlighted an issue of very serious concern for all members of the Grand Committee this afternoon.

The Grand Committee and the House are grateful for the work done by the committee, chaired by the noble Lord, Lord Trefgarne, in scrutinising every instrument that is laid before the Parliament. That is a very important job, getting into the nuts and bolts of what these orders are doing. It is able to get at what a particular instrument does and, through its engagement with Ministers and through its reports, bring matters to the attention of the House.

Covert surveillance is an important tool for our law enforcement agencies, the police and security services. It is a tool that can be used to provide evidence, to detect and prevent crime and, of course, to bring the perpetrators of crime to justice. It is a very important tool to keep us all safe. It is necessary, as there may be no other way to gather the intelligence needed. Having said that, we have to have proper codes of practice in place. When intelligence-gathering involves young people under the age of 18—people who are legally children, as we have heard—that is of serious concern to Parliament and to the Grand Committee today. How are their rights protected? Are adequate protections in place to take care of their physical and mental well-being? Is care taken, and what risk assessments are undertaken to ensure that that is the case?

As we have heard, the order before the Grand Committee today proposes to extend the period for which a person under the age of 18 can be used as a covert human intelligence source—what a name—from one month to four months. Terms such as “administrative convenience” from the Home Office do nothing to reassure members of the Committee that the Government have got the balance right here.

What should be of paramount importance is the welfare of the child who is being used as a covert intelligence source. Does the Minister accept that to seek to extend the term from one month to four months, you need to have clear reasons and to better explain what is being done, demonstrating that the welfare of the child is properly taken into account, other than it will be administratively convenient for the department? Further, can she tell the Committee how the Government have satisfied themselves that these proposals satisfy Section 1 of the Children Act 1989 and the UN Convention on the Rights of the Child, which the UK ratified in 1991? Could she also say something about how the safeguarding and protection of these children is delivered while involving them as covert human intelligence sources? I accept the point that the noble Lord, Lord Paddick, made on individual children and the wider community, but how we balance that out is very important.

--- Later in debate ---

[Baroness Williams of Trafford]

Under the current system it is only one month, whereas under the new system it would be up to four months but with a review every single month—and, yes, by the same senior officer.

[Lord Kennedy of Southwark]

Maybe I am being daft but I do not see the difference.

[Baroness Williams of Trafford]

I think I understand it. I apologise to noble Lords. The current system is limited to one month. The new system would be up to four months, but with a review every month.

--- Later in debate ---

[Baroness Williams of Trafford]

I think I have the answer now. Removing the requirement for the activity to be authorised at monthly intervals removes the need for investigators to push for early results to justify re-authorisation—that is what I understand—thereby allowing the juvenile CHIS to be managed in a way that better suits the long-term investigation and reduces the risks to the young person.

[Lord Kennedy of Southwark]

This goes to the point about administrative convenience that was made at the start. It may make it more convenient for the officer concerned, but how does it benefit the child?

[Lord Judge]

If you have to have a review every month, why do you not conduct a renewal? What is the difference between the review and the renewal in those circumstances? That is the heart of it.