Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Russell of Liverpool Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I declare my interest as a governor of Coram, part of which includes the Coram Children’s Legal Centre. When I saw that there were going to be three maiden speeches today, my thoughts wandered to whether there is a collective noun for maidens, and the answer is yes: it is a rage of maidens. I am glad to say that we saw none of that today. I think that everyone is saving it for the United Kingdom Internal Market Bill.

My remarks will concentrate on the use of children and vulnerable juveniles under the age of 18 as CHIS—a subject that many other noble Lords have referred to. Understandably, this is a highly sensitive area. I suspect the Government may say that since the number of children and young people used for this purpose is extremely small, since existing safeguards are being reinforced in this Bill and in the revised code of practice, which is going through a consultation process, and since the level of criminal activity in areas such as child sexual exploitation and county lines drug activities continues to rise, the use of juvenile CHIS must be a necessary evil and is, in fact, a public duty. However, if one follows that line of argument, one can see that the temptation for legal authorities to expand their use would be quite strong.

As I considered what I was going to say today, I was struck by an uncomfortable parallel as I thought of the faded black-and-white photographs and flickering cine film of German boys in 1945 being pressed into military service as a hopeless last attempt to resist the allied forces. The use of juvenile CHIS could be seen as evidence of the failure of our state to prevent the criminal activities into which they have been drawn. The evidence strongly suggests that those individuals who are candidates to be juvenile CHIS are often vulnerable, traumatised and acclimatised to a world in which their own freedom of choice and inability to tell right from wrong leave them open to influencing and manipulation. If we reluctantly accept that using a small number of these children in this way is a necessary evil, what can we do to put in the most comprehensive safeguards possible?

First, we are dealing, and will continue to deal, with a very small number of cases. This would make treating them in a particularly comprehensive way much more achievable than with a larger number. Secondly, please could the Government consider very seriously the eminently sensible suggestion of the noble and learned lord, Lord Judge—who, unfortunately, is not able to speak today—for a dual-lock approach such that in addition to the assistant chief constable who must currently authorise a deployment, we add a judicial commissioner with specialist knowledge and training who must also always be involved? Thirdly, could we in addition mandate a procedure such that, at the end of each deployment, the assistant chief constable and judicial commissioner undertake a comprehensive audit to assess the history of the deployment, its outcomes in all areas with a particular focus on the juvenile involved, and an assessment of any and all the lessons learned?

The Minister will be aware that she may be faced with a range of amendments in Committee dealing with child and juvenile CHIS deployments. With her usual courtesy and patience, I know she will be open to working with your Lordships to try to see how we can authorise such deployments with forensic care and an overriding focus on the best interests of the child.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Russell of Liverpool Excerpts

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

[Lord Russell of Liverpool (CB)]

My Lords, this is a fascinating if somewhat one-sided debate. I will suggest in a minute why I think that is the case and why that gives the Government a problem. I thank the Minister who, with her usual courtesy, went out of her way to have a meeting with me with her Bill team last week. I am extremely grateful for that.

It is crystal clear from the Bill’s passage in the Commons, from Second Reading and from today that both Houses have significant concerns about the use of children as CHIS. I will make my comments across all the amendments in this group, but I will try to put them in the context of why I think Her Majesty’s Government have a problem.

The fact that so many of us are so uneasy about this subject is, to me, clear evidence that we are unconvinced. We have yet to hear a compelling, clear and detailed articulation of why this is necessary in the first place. As the noble Lord, Lord Young of Cookham, said in his excellent opening speech, why, for example, did Her Majesty’s Government not conduct a child rights impact assessment on the Bill? I address that directly to the Minister, and I would like her to give me and the noble Lord, Lord Young, an answer to that, if not today, in future in writing. The template exists—why was it not used?

We feel that the onus is firmly on the Government to persuade us, and they have not yet done so. We need facts; we need solid data, redacted as appropriate, about previous and current deployments to demonstrate their necessity and value in the absence of viable alternatives. We need the evidence of their worth. We need a detailed and clear explanation of what is meant by “exceptional circumstances”, and we need examples to illustrate this. We do not have this.

Earlier this afternoon, the noble Lord, Lord Anderson of Ipswich, made what I thought was a very compelling case, which I ask the Minister to reflect on carefully. He recalled that in the passage of the Investigatory Powers Act 2016, a process went through whereby the different authorities concerned spoke in private to a group of people—including the noble Lord, Lord Anderson—probably made up largely of judicial commissioners who are privy to the Official Secrets Act and can be entirely relied upon. They in turn were able to disseminate what they had heard and to give their judgment on the value, or otherwise, of it. I think that, in this case, that might be a very useful precedent to consider following. Subsequently, the noble Lord, Lord Anderson, said that after that process there was a second stage, where those findings from that first group were relayed to both Houses of Parliament. That apparently was extremely effective, so we do not necessarily need to reinvent the wheel; I think we do have a precedent.

If the Government fail to convince us that there is a real need for and demonstrable value in using child CHISs, then it is highly probable that on Report there will be a strong case and significant backing for amendments, such as Amendments 43 and 52, which will simply prohibit their use, full stop. However, if the Government are able to convince us that this is a necessary evil, we are in a different but still problematic place. To their credit, both the Minister and her colleague, James Brokenshire, have made it clear that they acknowledge and even share some of our concerns. In that spirit, I appeal to them, and to the Bill team, to work with us to discuss and embed much more substantial and overt safeguards into the Bill on Report. Amendments 48, 51 and 60 are perhaps a good starting point.

As I said at Second Reading, we are dealing, thankfully, with a very small number of child CHIS deployments. If we can be persuaded that they are necessary, can we not create a watertight process which will mollify critics, put in place forensic scrutiny and oversight and which will, above all, focus on the best interests not of the police, or whichever authority it is, but of the child?

I think all of us who have spoken today are entirely at the Minister’s disposal and wish to work with her, should she so wish, to try to put our shared concerns to rest. But, as I said earlier, if the Government are unable to persuade us with strong evidence that there is a compelling justification for using child CHISs, many of us will feel compelled to insist upon prohibition. This is the Government’s challenge.

[Lord Judd (Lab) [V]]

My Lords, I thank unreservedly the noble Lord, Lord Young of Cookham, for the way in which he introduced this amendment. It was a challenge to us all. In protecting the values of our society, of which we like to speak so often, and in protecting the young and the vulnerable, there have to be some absolutes. I am glad that some of the other amendments have drawn attention to other vulnerable people who have been through nightmare experiences, and to whom the damage from being used in this way can be quite incredible.

We have to take seriously—again—the point that I have made several times this afternoon. I am afraid that we could be giving those who seek to undermine our society a victory, because they have provoked us into a situation in which we have acted against what we know to be essential. Nobody can calculate the damage to young people of being used in this way. Very few can really understand or analyse the damage done to other vulnerable people by being used in this way.

So, if we are going to stand firm for the society in which we believe, we must not allow ourselves to give in on these things; we must have absolutes. I therefore counsel those who have moved important amendments raising very serious points about “exceptional circumstances” to consider that probably, in this situation, there are no exceptions. We have to make our stand absolute and, in that way, we can win the battle for humanity that we are determined to win. I thank the noble Lord, Lord Young, for having challenged us so clearly.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

I have received requests to speak after the Minister from the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark. We will start with the noble Lord, Lord Russell of Liverpool.

[Lord Russell of Liverpool (CB)]

I thank the Minister for her very full reply. I asked whether the approach of my noble friend Lord Anderson of Ipswich in 2016 to the scrutiny of the Investigatory Powers Act, as it went through both Houses, might not be a model to follow. In our meeting last week, the Minister discussed with myself and those of us who are sceptical about the use of child CHIS for evidence the requirement for this. To convince us, she was kind enough to indicate that the 17 cases that we know of through IPCO produced a result that was deemed, in the balance of all things, positive and justified the use of those cases. In the absence of that sort of evidence, those of us whose primary concern is the best interests of the child are understandably very cautious and a little sceptical. We are willing to be convinced but we need the evidence to be convinced, please.

[Baroness Williams of Trafford (Con)]

I will reiterate what I said, which is that I am trying to work out a mechanism for sessions that might be helpful but not leaked, and perhaps where we can give some working examples—again, perhaps in private. We will try to do that if not before Report then during it, but before we come to this amendment.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Russell of Liverpool Excerpts

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

[Lord Holmes of Richmond (Con) [V]]

My Lords, I support Amendment 12 in the name of my noble friend Lord Young of Cookham. It is clear, coherent and consistent. It seems to me that my noble friend’s parliamentary career from the outset has been marked out by two great skills. First, he has the ability of get to the essence of the issue in front of him at the time. His second—and greater—skill is the ability to see where things are going, not least in the near and mid future. In his excellent opening speech, he demonstrated both skills perfectly.

I urge him to press Amendment 12 to a Division. A majority of noble Lords have spoken in favour of it. It is a matter of testing the opinion of the House on what is right, rather than what may fit with a particular day’s parliamentary arithmetic. I cannot improve on any of his words in his introduction, save to say that I agree with every last detail, and I urge him, as have a majority of other noble Lords, to press his amendment to a vote.

[Lord Russell of Liverpool (CB) [V]]

My Lords, I will speak to Amendment 24. I am grateful to my noble friend Lady Kidron for taking the lead on this amendment, to Stella Creasy for working with us so effectively from another place, and to a wide range of parliamentarians across all parties in both Houses.

As my noble friend Lady Kidron said in her comprehensive introductory speech, we are dealing with children, a point made forcefully just now by my noble friend Lady Bull—children, physically and mentally; children often abused, vulnerable, confused and frightened; children whose moral compass and sense of what is normal and of what is right and wrong may be tragically awry. Whatever they may have done, and whatever they may have become involved in, they are still children in statute, in international charter and in conscience. They need and deserve protection.

I pay tribute to the Minister, to her colleagues, and in particular to her friend James Brokenshire, who was mentioned on Monday and is in all our thoughts—I reiterate on behalf, I suspect, of everybody speaking today our best wishes for his speedy recovery—to the Bill team, and to the different individuals she has linked many of us up with to deepen our understanding of this complex background. She has made clear from the start that she understands our concerns, is sympathetic in principle and is keen to find ways to build in additional safeguards that will protect the child but also, very importantly, will build greater trust both within and without Parliament. Government Amendment 26 is not a bad start but, for the reasons stated eloquently by my noble friend Lady Kidron and others, I fear it is not good enough. A slightly enhanced re-emphasis of the status quo is not going to make a material difference to these children.

I entirely support the spirit behind Amendment 24 and I am grateful that the Government, even if they feel unable to accept it today, have acknowledged that our concerns are genuine and that there may be further work to be done before the Bill becomes law. In addition to what is stated in Amendment 24, I would like to place on the record four additional ways in which safe- guards and processes might be enhanced and improved. I have already shared these with the Minister. First, I ask the Government to consider involving IPCO from the very inception of the authorisation of a child deployment. I share the confidence of my noble friend Lord Anderson in the capacity of IPCO to oversee these highly sensitive issues, and I suspect that IPCO itself would be broadly receptive to this idea and that it could undertake this using its current resources. This would mean that, with child deployments, IPCO would be being proactive, not primarily reactive.

Secondly, for children in care who may become child CHIS, how can we enable the relevant social worker to be appropriately involved? There are many cases where the social worker is unable to do so for a variety of reasons, personal, organisational or legal, and we have work to do to ensure that there are always effective substitutes to hand. Thirdly, can we commit to a comprehensive audit and review process at the end of every child deployment to assess what went well, what went less well, what we learned and what we are going to do about it? Lastly, do we not have a duty of care to follow up with ex-child CHIS to monitor their welfare, to help and guide as necessary, and to measure the effects, if any, of their experience during deployments? This would truly be putting the interests of the child at the centre of the process and would acknowledge our responsibility to help them ensure a successful transition to adulthood.

I commend Amendment 24 to the House. I applaud the Government for being in listening mode and I urge all noble Lords to agree to this amendment, to send a clear message that we have more to do but that we intend to work with and not against the Government to achieve this.

--- Later in debate ---

[Lord Russell of Liverpool (CB) [V]]

My Lords, I have a specific question for the Minister. She mentioned the lifetime duty of care to the CHIS that whichever authority is managing them has after the deployment. In the case of children who have been deployed, if and when the person managing the child CHIS retires from the force or moves on to another role, what mechanism is there to replace the individual or individuals tasked with following up with the CHIS? Secondly, is there any sort of formal reporting mechanism that loops back how those ex-CHIS are doing, so that they can be monitored? Also, is that recorded in any way and can it be reported to Parliament?

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

My Lords, I thank the noble Baroness for her very detailed response to this long and important debate. I want to push her a bit further. She said that the Government cannot support Amendment 24 in its present form but understand where we are coming from. I equally understand where the noble Baroness and the Government are coming from. However, if the House voted for Amendment 24 and it was sent to the other place, I am sure that she would want to engage constructively with its movers—and other colleagues in this House and elsewhere—so that we could bring back through the ping-pong process something that the whole House could unite behind, taking the best points of her government amendment and the points in Amendment 24 that were carried. It would be useful for the House to know whether that would be possible.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Russell of Liverpool Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.

The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.

My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.

Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.

[Lord Russell of Liverpool (CB)]

My Lords, like the noble Lord, Lord Young, I will also speak very briefly to Motion D. I thank all noble Lords who have been part of a chorus of voices speaking on behalf of children, young people and vulnerable adults. It is very good news that their voices have been heard.

I thank the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I also thank the noble Baroness, Lady Young of Hornsey, who first tabled the amendment that the noble Baroness, Lady Kidron, then took on. I thank the noble Lord, Lord Anderson, because the initiative he brought forward to have greater involvement by IPCO has been and is extremely welcome. Stella Creasy has probably got enough plaudits without needing any more; it will doubtless go to her head. I thank the charity Just for Kids Law, which has been very active, helpful and constructive in realising what is and is not realistic.

The noble Baroness, Lady Kidron, asked all the questions that I would have asked, and probably rather better than I would have. I am sure the Minister will deal with them when she comes to respond. I quickly looked up whether a flock of Bishops is the right collective noun. It is actually a Bench of Bishops or a sea of Bishops, but unfortunately we do not have any with us today.