Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Young of Cookham Excerpts

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

Moved by

[Lord Young of Cookham]

12: 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, in moving Amendment 12, which seeks to prohibit the granting of criminal conduct authorisations to children, I wish to speak to Amendment 13, which does the same for vulnerable adults and victims of trafficking. These amendments build on proposals from me and other noble Lords in Committee. I will then say a brief word about Amendment 24 in the name of the noble Baroness, Lady Kidron, to which I have added my name. It does not offer all the protection of my amendments, but it is a useful advance on where we are at the moment and may provide the basis for consensus. The arguments for Amendments 12 and 13 apply with equal force to Amendment 24.

Let me begin by thanking Ministers for the extensive discussions between Committee and Report, and for facilitating a presentation by those in the Met Police who are at the operational end of the policy and a briefing with IPCO. Both were helpful in getting an insight into the reasons for using underage CHIS and the way the regime is supervised. I am also grateful to my noble friend the Minister for recognising the concerns expressed by me and others in Committee, and for tabling amendments with additional safeguards. As always, she has gone the extra mile to try to reach a compromise; it sounds churlish against that background to say that I still believe it wrong to use children.

Let me briefly summarise the argument for banning the use of children as CHIS—a reform whose time will surely come, when what happens now will be regarded as Dickensian. First, we have the clearly stated view of the Children’s Commissioner, who has a statutory role to advance and monitor the UN Convention on the Rights of the Child:

“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.”


That is pretty unequivocal.

Secondly, we have the Children Act 2004. 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”.

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.”


How can one promote the welfare of a child or act in its best interests by tasking some of the most vulnerable children in this country—some as young as 15—with infiltrating some of its most dangerous organisations and groups, including drug cartels, sex-trafficking rings and, potentially, terrorist cells? The circle cannot be squared. Either the interests of children are paramount or they are not.

Thirdly, children—often vulnerable, yet to come to terms with adulthood—are unable properly to assess the risk of what they are being asked to do, or even the extent of the mission. Those under 18 are legally children, whom Parliament has decided cannot be entrusted with a vote, get married or, indeed, buy alcohol. How can 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—and, indeed, the incentives that we have heard are being offered—from people whom they should trust and who might have been expected to save them?

Fourthly, related to that, far from encouraging children to get further entangled in criminal activities, those who have the best interests of children at heart should do precisely the opposite: disengage them from that environment at the earliest opportunity and so help them to rebuild their lives away from crime. The police should be pulling children away from criminality at every turn instead of pushing them further into the arms of serious criminals, often being asked to continue a harmful relationship, commit crimes and penetrate criminal gangs.

Fifthly—and finally—using underage CHIS is risky, as everyone recognises. However careful the authorisation, harm may come to a child. Their cover may be blown; reprisals may be taken. I make one prediction: if, tragically, an underage CHIS were to be killed, the policy would be reversed the next day after a public outcry and incredulity that this was permissible. What is proposed in the Bill is that the state should have immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism expressly to permit the harming of children, and Parliament should stop it.

In Committee, there were 14 Back-Bench speakers, a large majority supporting the amendment and others seeking greater justification for the policy before deciding. I mention one or two contributions from among the many remarkable speeches. There was the noble Lord, Lord Dubs, who, before the debate, believed that there were circumstances when the policy could be justified but, having listened to the arguments, declared himself in favour of an outright ban. There was the noble Baroness, Lady Young of Hornsey, who powerfully asked us to consider putting our own 15 or 16 year-old into the role of a CHIS. Unsurprisingly, my noble friend the Minister acknowledged that this would be very difficult indeed for her to imagine.

In her speech, my noble friend pointed to the judgment of Mr Justice Supperstone, in which he considered this very issue of children’s welfare. She also referred to it in the email that we received at 1.58 pm. Understandably, I have not time to absorb that fully, but the Supperstone case does not apply exactly to the question at hand. Because of the scope of the Bill, the amendment cannot, sadly, prohibit the tasking of children as CHIS; it can only prohibit them being granted criminal conduct authorisations. There is a difference between passively observing criminal activity, as in the judgment, and blessing in advance the commission of a crime, as in the Bill. Further, the court recognised:

“The very significant risk of physical and psychological harm to juveniles from being a CHIS in the contact of serious crimes is self-evident”.


The Bill goes above and beyond what courts have previously assessed by enlarging the scope of activity for underage CHIS.

After the debate, the Minister kindly arranged for the noble Earl, Lord Russell, and me to talk to two police officers from the Met with direct experience of handling underage CHIS. I was impressed by their determination to ensure that the law and guidance were properly followed. Records are kept, decisions and reasons are recorded, and alternatives are considered before authorisation.

I make two comments, which are not criticisms. First, once the case has been closed, there is no way that they would know if there had been any long-term impact on the child, who may by then be over 18, or what they had been through—a point well made by the noble Baroness, Lady Bull, in her speech in Committee. We know that trained police officers going undercover suffer from the consequences. Those who are underage will be even more vulnerable.

Secondly, their interpretation of whether the circumstances are so exceptional that an underage CHIS should be used comes from the perspective of the police. Their very mission is the prevention and detection of crime. Their interpretation may be different from that of, say, the Children’s Commissioner, who, as I have said, believes that there are no circumstances where this is justified. The children’s social workers or parents, none of whom have to be consulted or informed, might similarly come to a different view as to whether the circumstances warranted a CHIS. The decision is essentially a subjective one.

I am grateful to the Minister for listening to the debate and for tabling amendments; it is welcome that the Government have come forward with them. However, it is with some regret that I say that those amendments would not make a material difference to the lives of child CHIS. Indeed, they would make no difference at all to vulnerable individuals or victims of trafficking, since they are not contemplated whatever—something my Amendment 13 would put right.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I think that the noble Lord knows me by now. If Amendment 24 is carried, I will of course continue to work with him. The same is true for any other amendment that is successful on Report. I think that most noble Lords come from the same standpoint: they want to protect children but recognise that, sometimes, children may have to be involved in criminal activity. I know that my noble friend Lord Young does not take that view, but I think that most noble Lords recognise it. I will continue to work with the noble Lord, Lord Kennedy, Stella Creasy and others, whatever the outcome of today’s votes.

The noble Lord, Lord Russell, asked what happens if a person retires. That lifetime duty of care would probably necessitate certain people retiring and others taking over, but that does not mean that the duty of care does not extend over the young person’s whole life. On the formal reporting mechanism, we have IPCO and I am sure that there are other such mechanisms through the person tasked with that duty of care to the CHIS. If there are any other formal reporting mechanisms, I will notify the House of them.

[Lord Young of Cookham (Con)]

My Lords, this Bill has generated a series of debates about the role of the state in protecting society, including where the boundaries lie and the extent to which they impinge on civil liberties. This debate has been no exception, as the noble and learned Lord, Lord Hope, said. I am grateful to all those who have spoken; I will come to some of their comments in a moment.

The argument in favour of the use of underage CHIS has basically been that, in exceptional circumstances, the end justifies the means. Permitting a child to commit a crime and take risks is justified by the prospect of catching criminals. The contrary argument is that the end does not always justify the means, as the noble Lord, Lord Paddick, said; if it did, we would allow the waterboarding of suspected criminals and terrorists to save lives—but we do not. The debate has really been over where the risk/reward ratio, if I can call it that, falls in this case.

I am grateful to all those who have spoken. The noble Baroness, Lady Massey, referred to the UN convention and the inevitability of an element of risk if we go down this road. She also offered some additional safeguards of her own—namely, prior judicial approval.

The noble Baroness, Lady Kidron, along with others, paid tribute to the work of Stella Creasy. I do so as well. She has been heroic in liaising with your Lordships in taking this agenda forward. As the noble Baroness said, the Bill formalises the ability of the state to harm a child. She made the very valid point that a guardian is required if someone underage is charged with shoplifting but that there is no such protection if they become a CHIS. She also analysed the difference between Amendment 24 and government Amendment 26.

My noble friend Lord Cormack came up with a different limit—namely, under 16—but said that he would be tolerably satisfied with Amendment 24, which may indeed be where we end up.

The noble Baroness, Lady Hamwee, again made the important point about how you distinguish between grooming on one hand, which we do not approve of, and using a child as a CHIS, which we, on occasion, do. I think she said that her party’s preference was for Amendment 24 rather than Amendment 12.

I am grateful to the noble Baroness, Lady Chakrabarti, for her kind words. She pointed out that having exceptional circumstances always allows a degree of flexibility and subjectivity which one cannot get away from. She pointed out that, even if the amendment was carried, we still cannot ban the use of underage CHIS. Again, she made the useful point, which I think picks up on a point the Minister made, that many people look younger than they are—they are over 18 but look younger. Could not more use be made of them to avoid the dilemma that some of us find ourselves in?

The right reverend Prelate the Bishop of Durham emphasised the moral imperative of safeguarding a child. I think he said that, while his first choice would be Amendment 12 and then Amendment 14, Amendment 24 ended up as his third choice.

The noble Baroness, Lady Jones, rightly pointed out that people are unaware at the moment of what is going on. She referred to them as “child spies”. Again, if push came to shove, the noble Baroness would support Amendment 24. She seemed amazed that an aristocrat—if I can call myself one of those—should bring forward social reform, but if she looks at the whole history of the 19th century, she will find that a lot of social reform was indeed pioneered by aristocrats.

The noble Lord, Lord Dubs, was the swing voter in the last debate. He remains pro-Amendment 12, and I am grateful for that. Amendment 24 was his third preference. He referred to the long-lasting impact on the mental health of a child and cast doubt on whether they could give informed consent.

My noble friend Lady McIntosh also referred to UNCRC and came down, on balance, in favour of allowing CHIS in the most exceptional circumstances. But she needed convincing that Amendment 26, the government amendment, was better than Amendment 24.

The noble Lord, Lord Kennedy, was in favour of Amendment 24 and felt that Amendment 26 did not go far enough. He was in favour of using CHIS in exceptional circumstances and made it clear that he cannot support Amendment 12. I am disappointed by that, and I will come back to that in a moment.

The noble Lord, Lord Judd, spoke in favour of Amendments 25 and 19, and was against the use of CHIS.

The noble and learned Lord, Lord Hope, favoured the more nuanced approach of Amendment 24, rather than the absolute approach of Amendments 12 and 14.

My noble friend Lord Naseby agreed with the arguments that the vulnerable should be exempted, but he had some doubts about modern slavery.

The noble Baroness, Lady Bull, remains pro-Amendments 12 and 13, and I am grateful for that and for her support. She has not been persuaded by the argument. She made the point that parents who did what the Bill allows the police to do would find that their child would be taken into care. She also made the point that teenagers quite often act on emotion rather than reason.

I blushed when my noble friend Lord Holmes said his kind words about me. The high esteem in which he currently holds me may be lowered by what I have to say in a few moments.

The noble Lord, Lord Russell, has played a key role behind the scenes in trying to find a way through, and I pay tribute to that. He also mentioned James Brokenshire, somebody with whom I served in government for many years; I join those who wish him well and a speedy recovery. The noble Lord made four suggestions as to how we could build on what the Government have proposed, with a view to finding a solution.

The noble Lord, Lord Paddick, was unimpressed by the government amendments and ended up pro-Amendment 24.

I have had a bit of time to read the Minister’s letter. In her wind-up speech, she made the point that Amendment 24 would be unworkable because of the difficulty of finding appropriate adults. But appropriate adults are already there; they have to be there for under-16s and for those who are vulnerable between the ages of 16 and 18. One could draw on the same cohort to meet the requirements of having an appropriate adult for others. I listened to her example, but in it the child is extricated only after the information has been procured. The argument many of us have put forward is that the child should be extricated at the earliest possible opportunity, rather than after they have done their bidding.

In a former life, I was a Chief Whip, and one of the qualities needed in a Whip is the ability to count. I have looked at the fate of amendments to this Bill where the Opposition has withheld support, and they have gone down by three-figure majorities. I also note the reservation of several on the Cross Benches whose views I respect, such as the noble and learned Lord, Lord Hope. I do not believe that dividing the House is a useful use of its time, particularly given the position of the Opposition. Against that background, I will not test the opinion of the House, but I hope that all those who spoke in favour of Amendment 12 will back Amendment 24. I beg leave to withdraw my amendment.

Amendment 12 withdrawn.