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

Lord Paddick Excerpts

Wednesday 18th July 2018 Grand Committee

[Lord Judge (CB)]

My Lords, until last August, I was for two years the Chief Surveillance Commissioner—an office that no longer exists under the current legislation. I will echo one or two, but not all, of the points that have been made so far. If I may say so, I thought that the Explanatory Memorandum for this proposal in relation to juveniles was thoroughly inadequate and, if it had been adequate, would have said a good deal to allay the concerns that have been expressed today. I did not think that the letter from the Minister allayed those concerns—it did not address them, it seemed to me.

There is in fact an extremely careful system for supervising, organising and taking responsibility for all CHIS. There are very few juvenile CHIS, for all the reasons that have been given; I do not think the figures have been kept, but I can say this. What may not be apparent to many people in the Committee today is that each police force is examined and inspected by independent inspectors, answerable to a judicial figure, and the inspections cover every form of intrusive investigation that has gone on and all issues relating to the use of covert human intelligence. I can say from my own experience—it is not a state secret—that in relation to any CHIS activity involving juveniles, the inspectors pay particular attention to see that the issues of welfare and so on have been properly addressed. All this could have been explained and made available to the Secondary Legislation Scrutiny Committee, which would then have formed whatever view it thought appropriate.

There is, however—I could go on for some time about this—one point that needs consideration if the Government, decide to follow the suggestion made by the noble Lord, Lord Haskel. Within the surveillance process, in relation to authorisation for intrusive surveillance, such an order, however made—even by the chief constable himself or herself—does not take effect until it has been approved by a judicial commissioner and when the notice of that decision has been given to the person who granted the authorisation. It might just be worth giving some thought to using that particular additional safeguard when we are considering the rare occasions when a juvenile CHIS is being used.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these orders, and other noble Lords for their contributions. There are some issues around the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 that I would like clarification on before we get on to the major issue of the use of juvenile covert human intelligence sources. I therefore ask the Committee for a few moments to deal with those other issues.

I understand that this instrument brings into force the three revised codes of practice regarding the functions carried out under RIPA 2000, and that these need to be updated, not least because of the Investigatory Powers Act 2016 and the additional safeguards it introduced. One of the phrases in the Explanatory Memorandum—changes to “cover current practice”—is a little worrying, as it stands. I hope the Minister can reassure the Committee that the codes of practice have not been altered simply because law enforcement and intelligence agencies have changed how they do things. Surely the codes of practice are there to ensure compliance with government-defined best practice, not the other way around.

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[Baroness Jones of Moulsecoomb]

I absolutely did not mean to imply that. I understand how they are recruited: I did not mean that.

[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.

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[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in this debate, in particular the noble Lord, Lord Haskel, who introduced some of the committee’s concerns. I apologise for the quite unsatisfactory Explanatory Memorandum, about which the noble and learned Lord, Lord Judge, and to a certain extent the noble Lord, Lord Paddick, gave very good explanations and far more of the context, which is a learning point for me and for the Home Office. I repeat the point that all noble Lords made about the welfare of the child being paramount. The noble Lord, Lord Haskel, said that he is a parent; I am too. It is the most important thing that we are discussing.

I will start by addressing the Regulation of Investigatory Powers (Juveniles) Order 2018, which the Secondary Legislation Scrutiny Committee expressed concern about and which has, in the main, been the subject of interventions today. Over the past 18 months, at the Security Minister’s instigation, the Government have been conducting a review with operational partners of the covert human intelligence source, or CHIS, authorisation framework to consider whether it is working as effectively as it could. This included consideration of the Regulation of Investigatory Powers (Juveniles) Order 2000 which put in place a set of enhanced safeguards that apply specifically to the authorisation of a CHIS under the age of 18, demonstrating that the ability to authorise people under the age of 18 as a CHIS is not something new. That has become clear in the course of discussions.

While investigators might wish to avoid the use of young people as a CHIS, we must recognise that, unfortunately, some juveniles are involved in serious crimes both as perpetrators and as victims. Consequently, young people might have unique access to information that is important in preventing and prosecuting gang violence, terrorism and child sexual exploitation offences. Noble Lords will undoubtedly be aware of reporting in the media recently—this was mentioned in the debate—on the escalating county lines phenomenon which, along with the associated violence, drug dealing and exploitation, has a devastating impact on young people, vulnerable adults and, of course on the communities they affect.

The existing juvenile CHIS regime allows for the use of a juvenile CHIS to be authorised for just one month at a time as compared to a 12-month authorisation for those over the age of 18. This can make their deployment more difficult to manage, which in turn can be unhelpful both to them and to law enforcement. It can also act as a deterrent to law enforcement seeking CHIS authorisation in some circumstances where immediate results might not be obtained during a one-month period, even if a longer, carefully managed deployment could provide a significant operational dividend.

To reduce the pressure to obtain immediate results from such an authorisation while still ensuring the protection of the juvenile, we are increasing the maximum length of a juvenile CHIS authorisation from one month to four months, requiring an authorisation to be reviewed at least monthly which will enable these deployments to be conducted in a more measured way. I will go into more detail on that in a second. Additionally, we have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them, and we are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility, which reflects the increasing independence of young people between the ages of 16 and 18 and that parental authority reduces accordingly—the point about 15 going on 25. I hope that reassures noble Lords that these changes are not about administrative convenience.

We think that these amendments will improve the operational effectiveness of the juvenile CHIS regime, while strengthening the protections for young people in this area and the safety and welfare of young people undertaking this important and dangerous role. This remains absolutely paramount.

[Lord Paddick]

Can the Minister explain how deployments are more difficult to manage if they are authorised for only one month? Presumably the deployment can continue and there is a review by an assistant chief constable or a commander to renew the authorisation, without interfering with the juvenile or the deployment. In those circumstances there would be no pressure to produce results within a short space of time if all we are saying is that the authority can be renewed by this more senior officer at the end of one month on an ongoing monthly basis, but it is very important that somebody of that seniority—that removed from the investigation—objectively decides that that authorisation should continue.

[Baroness Williams of Trafford]

For the convenience of the Committee, I will go through the process. Authorisations for the juvenile CHIS should be granted at an enhanced level, which is set out in annexe A of the code of practice. For example, for a police force this would be by an assistant chief constable, in comparison with the adult CHIS, where an authorisation would be considered by a superintendent. The code of practice requires that, where possible, the authorising officer who grants the authorisation should be responsible for considering subsequent reviews and renewals. That is how each month the whole thing is revisited to continue for a further month, up to four months. But all these processes need to be documented and considered by the handler, the controller and the authorising officer within the public authority and will be fully open to inspection by the Investigatory Powers Commissioner as well. This creates, in our view, a comprehensive framework of safeguards which ensure that the conduct is necessary and proportionate to protect the interests of that young person. With regard to increasing the maximum, they may not be able to finish off what they started within just one month and hence a monthly review, up to four months, is in place. The noble Lord is looking slightly confused so I will let him intervene.

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[Lord Paddick]

Can the Minister confirm that the monthly review would be undertaken by an assistant chief constable or commander?

[Baroness Williams of Trafford]

Yes.

[Lord Paddick]

I still do not understand the difference between the current system, where that authorisation would have to be renewed by a commander or assistant chief constable each month, and a four-month authorisation that is reviewed every month.

[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.

[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.

[Lord Paddick]

I am very grateful to the Minister. At the moment, an assistant chief constable or a commander can authorise a juvenile CHIS to be deployed for a month. At the end of that month there can be an application from the handler to the senior officer to renew the authorisation so that it has the effect of continuing for another month, and so forth, for as long as it is necessary. The new system that the noble Baroness is suggesting is a four-month authorisation with a review by the commander or assistant chief constable at the end of each month. What is the difference between the two systems?

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[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.

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?

[Baroness Williams of Trafford]

I am very grateful to the noble and learned Lord, Lord Judge, because he seems to put things so clearly. I get the noble Lord’s point. Perhaps I may think about it and write to noble Lords, because I now understand exactly the point that the noble Lord is making—thanks to the noble and learned Lord, Lord Judge.

I will now move on to the appropriate adult point. We have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them. I think that I have already said this. We are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility. This reflects the increasing independence of a child approaching the age of 18.

I will now touch on the issue of consistency of approach.

[Lord Paddick]

I am very sorry; I know that it is late. I quoted from the draft revised code of practice. Paragraph 4.3 states:

“Public authorities must ensure that an appropriate adult is present at any meetings with a CHIS under 16 years of age”.


An appropriate adult has to be present at the interrogation of a criminal suspect under 18 years of age. My question was: why is there a difference between the two?

[Baroness Williams of Trafford]

The noble Lord did ask that and I did not answer it satisfactorily. I will write also on that point.

Perhaps I could move on to the oversight regime. The independent oversight of these investigative powers was first legislated for by the Police Act 1997, and the powers are now overseen by the Investigatory Powers Commissioner, who also oversees the powers provided for in the Investigatory Powers Act 2016. The commissioner, like those oversight commissioners his role has replaced, provides the guarantee of impartial and independent scrutiny of the use of these tactics. The oversight commissioners have published reports annually, and, in his final oversight report in 2017, the Surveillance Commissioner commented that,

“standards of compliance have steadily improved in my view, and addressing it generally, they are high”.

The Government accept that the Explanatory Memorandum originally laid alongside the juvenile CHIS order did not go far enough and, as the noble Lord, Lord Haskel, said, the revised version was laid last week. It provides greater detail on the changes made by the order and on the use of juveniles as CHISs more generally. However, I have to make it clear that the Explanatory Memorandum should not be read alone. As I have set out, those charged with authorising and handling young people who act as CHISs have access to extensive guidance available to them to ensure that juveniles are safeguarded. The Explanatory Memorandum is clearly not the right place for the detail that the code contains. Such detailed guidance on the use of these sensitive tactics is necessarily not in the public sphere, as to do so may undermine operational practices and have the potential of putting the CHIS in harm’s way.

The fact that these two orders were laid at the same time is not a fluke—rather, it is the continued development of a suite of statutory safeguards and associated guidance, revised and updated to ensure that these powers are used proportionately and in accordance with the law.

I will now turn to some of the issues which were raised by noble Lords. The noble Baroness, Lady Jones of Moulsecoomb, talked about using children as spies—and this relates to the numbers. I can say to noble Lords that the numbers are extremely low. We do not disaggregate by age, but as I say, the numbers are low.