Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Young of Cookham Excerpts

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

Moved by

[Lord Young of Cookham]

43: Clause 1, page 3, line 2, at end insert—
“( ) A criminal conduct authorisation may not be granted to a covert human intelligence source under the age of 18.”Member’s explanatory statement
This amendment would prohibit the granting of criminal conduct authorisations to children.

[Lord Young of Cookham (Con)]

My Lords, along with the noble Baroness, Lady Chakrabarti, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Bull, I have tabled Amendment 43, to exclude the granting of criminal conduct authorisations to children. I am grateful for the helpful meeting with my noble friend the Minister, James Brokenshire and Home Office officials, who talked me through the need for this provision. I am also grateful to Jennifer Twite of Just for Kids Law and Tyrone Steele from Justice for putting the contrary view.

As it stands, the Bill is silent on the role of children in this aspect of law enforcement. It would have been helpful if the child rights impact assessment developed by the Department for Education in 2018 had been undertaken for this Bill. It would have illuminated our debate. The amendment would not prohibit the use of children as covert human intelligence sources entirely. That would have been my preference, but unfortunately it is outside the scope of the Bill. Therefore, the amendment is narrower, focusing on the prohibition of their involvement in criminal activities, for which the case is even stronger.

The Government are asking the Committee to approve the tasking of some of the most vulnerable children in this country, some as young as 15, with infiltrating some of its most dangerous organisations and groups—drug cartels, sex-trafficking rings and, potentially, terrorist cells. Let me address head on the arguments for allowing children to be used as CHIS. These were set out at Second Reading by my noble friend Lord Davies of Gower, whose views I respect as a former member of counterterrorism command at the Met and a former member of the National Crime Squad, by the Minister in her reply to that debate, and by the Minister for Security in another place. My noble friend Lord Davies said:

“The use of children has been much exercised today. It is unpleasant… particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary.”—[Official Report, 11/11/20; col. 1083.]


The Minister basically said the same:

“This may be necessary to stop criminal gangs from continuing to exploit those individuals and prevent others from being drawn into them.”—[Official Report, 11/11/20; col. 1112.]


The Minister for Security, James Brokenshire, stated in a letter to the chair of the Joint Committee on Human Rights on 4 November that

“a young person may have unique access to information or intelligence that could play a vital part in shutting down the criminality, prosecuting offenders and preventing further harm.”

In a nutshell, the argument was that the end justified the means—that the imperative of fighting crime overrode normal standards and justified law-breaking. But I do not buy that.

Let us assume, for example, that it could be shown that waterboarding or sleep deprivation of suspected terrorists to extract information would save lives. On that theme, on the “Today” programme recently, Robert Woolsey, a former director of the CIA, said:

“Would I waterboard again Khalid Sheikh Mohammed … if I could have a good chance of saving thousands of Americans or, for that matter, other allied individuals? Yes.”


Would we condone it in legislation? Of course not. Torture was abolished in 1628 and is prohibited under international law. The utilitarian argument is trumped by the moral imperative; torture is a red line. There are no exceptional circumstances where torture is justified, no matter that it might lead to the saving of innocent lives. It is not a price that civilised society is prepared to pay.

Using children as CHIS is not of course torture, but the analogy is apt, as it shows the vulnerability of the argument that the end justifies the means. I say to my noble friend that, for some of us, using children—often vulnerable, yet to come to terms with adulthood, unable to assess properly the risk of what they are being asked to do or even perhaps comprehend the limits of their mission and often being asked to continue in a harmful relationship, to commit crimes and to penetrate criminal gangs—is also a red line. Those under 18 are legally children, and the law accepts that they cannot make good decisions about their lives, hence the ban on marriage, buying alcohol et cetera—activities otherwise legal. How could it be that a child as young as 15 can give their full and informed consent to being placed in a sexually exploitative environment, particularly given the pressures on them to do so from people in authority, people whom they should trust, who might have been expected to save them?

This red line is embedded in our legal system. We are signatories to the United Nations Convention on the Rights of the Child, Article 3 of which provides:

“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 Children Act 2004 makes this obligation all the more concrete. Section 11 states that public bodies, including the police and other law enforcement entities, must have

“regard to the need to safeguard and promote the welfare of children”.

I do not see how we square the circle. Either we safeguard and promote the welfare of children or we do not. How can it ever be in the best interests of a child to be a spy? Far from encouraging children to get further entangled in criminal activities, those who have their best interests at heart should do precisely the opposite: disengaging them from that environment and so helping them to rebuild their lives free from harm. We should be pulling children away from criminality at every turn instead of pushing them into the arms of serious criminals. How is a child protected from danger if a gang discovers that he or she is a CHIS? What would be the public reaction if, heaven forbid, a child CHIS was murdered by the gang he or she was infiltrating? How can a local authority in loco parentis for a child discharge its duties if a social worker is not aware of what is going on?

I make one final point. Under the Children Act 1989, every local authority has the duty to safeguard children in need. Where a local authority suspects that a child is likely to suffer significant harm, it can seek an order from a court to take the child away from those parents and place them into care. This would certainly cover parents encouraging their children to take actions such as drug trafficking or gang participation. How can the local authority perform those duties when another arm of the state, the police perhaps, is doing precisely the opposite? If a parent were putting children into such risky, harmful situations, we would rightly expect the children to be taken into care.

What is happening is that the state is seeking immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism to expressly permit the harming of children. Local authorities already find this unacceptable when undertaken by parents; we must concur when the state does it. Noble Lords will have seen the statement by the Children’s Commissioner issued on Monday:

“The Children’s Commissioner remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She is extremely concerned that this practice is not in the best interests of the child and there are insufficient safeguards in place to protect these vulnerable children. To that end, the Commissioner supports the introduction and adoption of the following amendments: amendment 43.”


My objection is one of principle, but there are other issues to be raised, if the principle is set aside, about safeguards. Those will be addressed by others who propose other amendments in the group. I hope that, at the end of this debate, the Government will be persuaded to think again. They say child CHIS are used very infrequently. I believe it would be best if they were not used at all. In the meantime, I beg to move.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is an absolute privilege to follow the noble Lord, Lord Young of Cookham, to associate myself with every word he spoke just now and to have signed his amendment. Amendment 43 and, to some extent, the others in the group, go to the heart of who we are as a society and, indeed, to the heart of what dangerous, important law enforcement is all about if not, ultimately, to protect children most of all.

It is unconscionable that children should be used as agents per se. Unfortunately, as I have complained before, we cannot do anything about children being used as agents in the Bill, but we can amend it to prevent those children being put in even greater harm’s way by authorising them to commit criminal conduct, which is normally the opposite of the message we send to our children. Indeed, we condemn those who, elsewhere in the world, groom their children for crime or to act as soldiers even in grave situations of war, and such children have often sought refuge in the United Kingdom.

One of my fears in relation to children being used in this way is that many of them are particularly vulnerable children to begin with. Some of them may actually be wards of the state; they may actually be looked-after children who do not have a normal, viable, stable family to protect them. If these children are looked after by the state and then used by the state in this way, that is a double abuse, it seems to me, by all of us as a community.

There must be other ways to ameliorate this problem. There are young people, as I once was, who look far younger than their age well into their early 20s. There must be other, more proportionate ways to do some of the work that needs to be done, exceptionally. It is a very serious human rights violation for any state to put children as young as 15, as the noble Lord, Lord Young has said, into this kind of situation, with long-term consequences for their emotional health and, indeed, for their lives.

--- Later in debate ---

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

Actually, I have nothing to ask. The noble Baroness answered my point right at the end, after I had asked the clerk if I could speak, so I will leave it there.

[Lord Young of Cookham (Con)]

My Lords, I am very grateful to everyone who has taken part in this debate—not least the Minister, who has been on her feet answering debates for over six and a half hours and has done so with patience and courtesy. It is probably in breach of her human rights to be on duty for such a long time.

I am also grateful to all those who have taken part in this debate, the vast majority of whom have been in favour of Amendment 43—namely, there are no circumstances in which children should be used as CHIS. That is reflected in most of the amendments, with one or two, as it were, blurring the red line a little by specifying certain circumstances in which that might be possible.

Perhaps I may briefly pick up some of the points that were made during the debate. The noble Baroness, Lady Chakrabarti, made a good point about those over 18 who look younger than they are and whether, if it is inevitable that people who look young will be used, it should be them rather than people who actually are under 18. The noble Baroness, Lady Hamwee, made a good point about the rather narrow distinction between, on the one hand, grooming, which we are all against, and, on the other, persuading vulnerable children to act as covert human intelligence, which we are less enthusiastic about.

The right reverend Prelate the Bishop of Carlisle asked us to think about the consequences for the child, and he wanted better safeguards. The noble Baroness, Lady Bull, quite rightly, wanted the ban extended to victims of slavery and trafficking and those who are unable to give informed consent. She delved into the psychology of teenagers to query whether this worked and whether somebody of that age could make rational decisions. My noble friend Lady McIntosh wondered how the use of children could be compatible with the UNHCR. Then the noble Baroness, Lady Massey, joined others in pressing for a meeting with the Minister between now and Report, which she has readily agreed to.

We then came to what I thought was the most valuable contribution—from the noble Lord, Lord Dubs. He was the floating voter in this debate. He said that he had been swung by the argument and was now in favour of Amendment 43. As a former Chief Whip, I was always rather worried when colleagues went into the Chamber to listen to the debate just in case they could be swayed the wrong way, but on this occasion I am delighted that we have had an impact on the floating voter.

The noble Baroness, Lady Doocey, said that vulnerable children need support, particularly if they are already victims. She made the valid point that we do not send children into battle, so should we send them into circumstances that might be equally dangerous? The noble Baronesses, Lady Jones and Lady Young of Hornsey, touched on the risk of blackmail: “Either work with us as covert human intelligence or you will be arrested”. The noble Baroness, Lady Young, mentioned evidence from police officers that this was the case.

I say to the noble Baroness, Lady Jones, that it is not just Greenies who are in favour of this. I was a member of Friends of the Earth for a very long time— until, as Secretary of State for Transport, I built the Newbury bypass, when, I am sad to say, it expelled me. She also made the valid point that if the police are traumatised when they act in these circumstances, what will be the position of children under 18?

The noble Baroness, Lady Young, made a point that was picked up by others: would we allow our children —or, in the case of many Peers, our grandchildren—to be used as human spies? Of course, under the terms of the draft code, parents would not necessarily know that this was happening; they do not have to be told.

The noble Lord, Lord Russell, summarised the concern in both Houses and said we need the evidence. I hope we get the evidence and I hope it is all of it: not just the evidence that may substantiate the case that the Minister wishes to persuade us of, but evidence of where things have not perhaps gone quite as they should. The noble Lord asked whether the process used for the Investigatory Powers Act might be used in this case. I am not familiar with it but that sounds like a very helpful suggestion.