Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 - Motion to Regret

– in the House of Lords at 5:26 pm on 16th October 2018.

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Moved by Lord Paddick

That this House regrets that organisations concerned with the human rights and welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months, as provided for in the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (SI 2018/715).

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I declare an interest as a former controller of covert human intelligence sources—CHISs—or police informants as they are otherwise known, although I have never controlled child CHISs. As I approach my fifth anniversary in this place, I hope that noble Lords will accept that tabling a regret Motion is not something I do lightly. The Government have introduced regulations that appear to weaken and/or not provide enough protection for children employed by the police as CHISs. Both the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights have raised concerns about the whole regime of police using children as CHISs. As a result, on 18 July, we debated a take-note Motion, moved by a member of the Secondary Legislation Scrutiny Committee, in Grand Committee.

There are three main concerns. The first is that a child aged 16 or 17 can be recruited as a police informant without a parent, guardian or appropriate adult being present, even though it is illegal to interview a child of those ages under caution about a criminal offence without such a person being present. The parent or guardian of a child under 16 does not have to be present when a child is recruited as a police informant but, in that case, an appropriate adult must be.

Secondly, the period for which a child can be authorised as an informant by these new regulations has been extended from one month to four months, although the authorisation has to be reviewed every month. The authorisation must be given by a very senior police officer or equivalent, but to date we have not been able to get a clear answer on what the difference is between a one-month authorisation being extended on a monthly basis and a four-month authorisation that is reviewed monthly. Either the safeguards are being weakened, in that the review is less thorough or is conducted by a lower-ranking officer, or there is no need to change the previous arrangement, where an authorisation had to be extended monthly.

The explanation—knowing that the authorisation is only for one month could limit how the child could be deployed—does not hold water. I speak from operational police experience. In seeking the original authorisation, the deploying officer could explain that the deployment is going to last several months and that the officer will be asking the senior officer to extend that authorisation. The senior officer could then indicate whether he would be minded to do that, taking account of how dangerous the assignment is and the impact on the child. In my experience, it would be much easier for a senior officer not to extend an authorisation than it would be for him or her to pull the plug on a four-month authorisation which he or she had already given, as doing so would not call the original authorisation into question.

At the same time as this apparent weakening of the safeguards, the Minister says people are becoming involved in more serious crime, such as child sexual exploitation, violent gangs, drug dealing and terrorism. It therefore appears that the dangers faced by child CHISs is increasing while the safeguards are either insufficient or being weakened.

The third issue concerns Article 3 of the UN Convention on the Rights of the Child, to which the UK is a signatory. It states:

“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 text refers to the best interests of “the child”—not “all children” or “society as a whole” but, in this case, to the child being used as a child informant. When can it be in the interests of that child to be asked to return to the paedophile, the criminal gang, the county lines drug dealer or the terrorist group in order to provide information to the police, given that the child is obviously in danger in those situations? These are not my concerns alone; some are shared by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights.

Before debating the take-note Motion in Grand Committee, I gave notice to the Minister of the points the Government should cover in that debate—namely, the three issues I have just outlined. Despite this, and numerous interventions during that debate, the Government appeared to be unwilling, or unable, to answer the questions. Why were child informants afforded less protection than criminal suspects? What is the difference between extending a monthly authorisation and a four-monthly authorisation reviewed monthly? And how is the deployment of a child CHIS compliant with the UN Convention on the Rights of the Child?

To be fair to the Minister—who is not only very competent but somebody I like on a personal level—she is not the only one. There is ongoing correspondence between the chair of the Joint Committee on Human Rights and the Minister of State for Security and Economic Crime; the chair has not yet received satisfactory explanations from that Minister either.

Last week, I had the pleasure of meeting both Ministers together, at the same time; the official from the Home Office who is leading on this issue was also present. At this meeting—albeit that it was a meeting for another purpose, at the end of which I ambushed them—I again set out the three issues on which we have yet to receive a satisfactory answer.

There are no longer any excuses for the Government not to answer these questions. Our duty in this House is to hold the Government to account. When they are unable or unwilling to account for their actions, as happened during the take-note Motion debate, the Government cannot be expected to get away with it. My regret Motion is as much about sending a message to the Government that this House will hold them to account, despite their inability or unwillingness to account for their actions, as it is about the substantive issues. That having been said, there are other noble Lords, outside organisations and members of the public who are very concerned about the whole idea of using children as police informants. Indeed, one children’s organisation is crowdfunding to take the Government to judicial review over the use of children as CHISs, which it believes is incompatible with the United Nations Convention on the Rights of the Child.

There are worrying signs here of a direction of travel. Not only do the Government appear to be sacrificing the rights of children in exchange for information, but they appear to be prepared to sacrifice people’s right to life by not insisting on death penalty assurances when the UK provides evidence to foreign law enforcement bodies—not just in one-off cases, but if necessary to secure data exchange treaties. The latter issue is for another day, but let us hope the Government are not prepared to sacrifice peace in Northern Ireland in exchange for a Brexit agreement. I beg to move.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I am a member of your Lordships’ Secondary Legislation Scrutiny Committee, and somehow it has fallen to me to voice the concerns of the committee. It was I who spoke in the debate in July to which the noble Lord, Lord Paddick, referred. This order was presented to the committee as a matter of administrative convenience: extend the authorisation from one to four months and you reduce administration—simple. Perhaps it is because many of us are parents that we wondered why juveniles were being used in covert activity in the first place. The Explanatory Memorandum spoke of safeguards but not how they would be implemented, and it was silent on the number of juveniles involved. We requested more details, but we were still not satisfied, and so the committee decided to report this regulation to the House, both in our weekly report and in a Motion to Take Note—that was the debate in July.

During this process, it became apparent that juveniles were being used for far more dangerous activities than just checking on shopkeepers selling alcohol to minors, including activities relating to serious crime, drugs and terrorism. These activities put them in danger of violence and sexual assault, and all sorts of associated mental, physical, psychological and educational problems. Together with other noble Lords, we spoke of our concerns in the debate in July. The Minister sought to reassure us with more detailed safeguards, but many of us remained concerned.

Meanwhile, I was contacted by Rights Watch UK. It was concerned that human rights and the rights of the child were being ignored, and suggested that we should refer this to the parliamentary Joint Committee on Human Rights. After the debate, your Lordships’ committee did this, and the Joint Committee took it up with the Government through a series of questions. Its members share our concerns about the safeguarding of juveniles and what they call scope creep. As the noble Lord, Lord Paddick, said, this correspondence continues and there are meetings. This view is shared by another children’s charity: Just For Kids Law. It has contacted me and its lawyers have issued a pre-action letter to the Home Office seeking judicial review on this matter. During this time, there has also been press coverage, and I have received several letters from concerned parents.

As I said, the history is important because, at each stage, the Government have introduced further support for the juveniles and more detailed safeguards. For example, the numbers involved are now recorded; the authorising officer will weigh the intelligence benefits against the potential negative impact on the juvenile; and there will be more judicial and police scrutiny, and at a higher level. However, we remain unsure how consistent this will be across the various police forces and how it will be properly carried out.

The task of your Lordship’s Secondary Legislation Scrutiny Committee is to judge whether these reassurances and changes are sufficient. But it is for the House to decide whether this is a proper activity for juveniles and whether our police, judicial and security services provide adequate support and supervision.

This is not a party-political matter. As the noble Lord, Lord Paddick, explained, it is a security issue, a human rights issue and a rights of the child issue. Before the Government ask us to enact this legislation, with the increased assurances which they have given, I hope they will wait to see what comes out of the human rights correspondence and the judicial review. I feel sure that this is the view of most people in the House, and I look forward to hearing what the Minister has to say.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I am pleased that my noble friend Lord Paddick has moved this Motion. I should declare an interest: I am a trustee of the organisation Safer London, which works to prevent and address young people’s involvement in crime, including running a gang exit programme for the Metropolitan Police and now MOPAC. In that role, I recently undertook some quite basic safeguarding training; safeguarding is of course very relevant to this issue. It seems to me that the thinking about safeguarding has developed; I wonder whether the thinking about the use of young people in the role of covert human intelligence sources has developed in tandem.

I asked somebody who I know through Safer London about this issue, and I was given the following example, which I think well illustrates the concerns that have been expressed. A young woman of 17, who was described to me as “on the edge of care”, whose parents were separated and who had been between boroughs, was exploited by a man who—this is very common—she thought of as her boyfriend. He was selling a group of girls, including her, for sex. The police were looking for information on him and she was left in her situation so that she could provide information. In other words, she was exploited by him and continued to be exploited by him, and was, arguably, exploited by the police. Eventually, she witnessed a murder. She was drawn into it, and not just as a witness, as she was asked to dispose of clothes and other items afterwards. How was her consent to this tested? No significant adult in her life knew of her involvement, and we must ask ourselves what qualifies a police officer to make the assessment that is needed here. This is obviously a question of training, but the officer making the assessment must also be independent from the particular investigation. I, for one—and this is nothing other than common sense—find it hard to believe that officers can easily put aside their loyalties to police colleagues in the investigation for which they have responsibility.

What is the position of corporate parents of a child in care? So many young people who are caught up in crime are, or have been, in care, or have low-level learning difficulties. Crucially, what support is given after the event? This is no doubt one of those muddy situations: a perpetrator may also be a victim, or a victim may be a perpetrator. I am told that it is not that uncommon for the police to offer witness protection in exchange for assistance—or, at least, they are very often asked to do this. As I say, it is quite a muddy situation.

My noble friend’s Motion regrets the lack of consultation with organisations concerned with human rights and the welfare of children. I suspect all of them would have raised similar points, and probably made the point that 16 year-olds are often not very mature, and indeed, neither are 18 year-olds. I do not know where vulnerability stops. To indicate how vulnerable young people might feel, I gather that it is not unusual for someone who was a gang member and is in a young offender institution to request segregation—solitary, in other words—because of fear of other gang members in the same institution.

The JCHR, of which I am a member, raised a number of issues with the Home Office, and my noble friend has referred to them. I was startled to discover in a response from the Security Minister that there were no national statistics about the use of juvenile CHISs, although I gather that there will be from now on. A central issue, of course, was the welfare of the child. We are told that this is kept “in mind”—I quote those words from the Security Minister—in considering changes to the 2000 order, and that this is paramount, which of course it is ethically and legally. The Security Minister’s letter uses the term “proportionate”. I accept that that was in a particular context but how does one reconcile proportionality with paramountcy?

The Minister referred to research and I looked online to see whether I could find it. It seems not to be openly available, although I found an abstract which mentions “institutional nervousness”, suggesting an aversion to the risks associated with the use of juveniles which the author of the research writes might not always be justified. He then goes on to say:

“The study also illustrated the challenges that the police face in properly assessing risks (particularly the competence of officers to assess the psychological and moral risks that are always associated with the use of CHIS)”,

and crucially it argues for further research.

I am prepared to acknowledge that there is a place for some use of juveniles. The police go into schools to recruit underage children to buy from off-licences. I am slightly queasy about that but the person who told me about the young woman I mentioned said that she was happy enough for her son to be involved in this. However, that is very different from the situations that many of us are worried about. I will simply say that answering the question of the paramountcy of the welfare of the child by,

“noting in particular the potential for positive life outcomes for young people who engage with policing in this way”,

seems to be pushing the point much too far.

My noble friend was right to bring this matter to the House and I support the Motion.

Photo of Lord Judge Lord Judge Judge 5:45 pm, 16th October 2018

My Lords, until about a year ago I was the Chief Surveillance Commissioner. I shall make a few observations in this debate, largely repeating what I said way back in July.

There are occasions when youngsters can sensibly and safely be used as CHISs. There are occasions when they help in the investigation of crime, and they sometimes work so that crime is prevented. That said, we need to recognise that a number of safeguards are in place—but the question is whether the safeguards are as complete as they should be. They include that an authorising officer in the context that we are considering is always, in every police force, at least at the level of assistant chief constable. This is not a responsibility discharged by relatively junior—or indeed even quite senior—officers. It is a situation in which the inspectors, as they used to be in the surveillance commission, always look at every case involving a juvenile CHIS with particular attention, for all the obvious reasons. However, it is problematic.

The question I have asked, and shall continue to ask, is why on earth we do not have a double-lock system to address all anxieties about whether even assistant chief constables may be as objective as they should be—bearing in mind their responsibilities for the investigation and prevention of crime—in balancing the safety, the welfare and the long-term safety and welfare of the juvenile CHIS. One way is to deal with this process in a way that is perfectly well understood—it certainly was in the surveillance commission and is obviously still understood to this day under the new arrangement. The judicial involvement in this process should not be after the inspection has taken place and the inspectors have reported to the Chief Surveillance Commissioner so that he can make a judgment. Instead, after the senior officer has decided that this is an appropriate situation in which to use a juvenile CHIS, the decision should then be considered by one of the judicial commissioners, who undoubtedly—this is not an implied criticism of assistant chief constables—will be focused more significantly on the protection and the needs of the young CHIS than perhaps a police officer might be.

It is a question of balance. It is a safeguard which could be introduced—unless things have changed dramatically—with little difficulty. Judges are used to giving authorisations for all kinds of elements involved in, if you like, the secret world, and this would be one more. Very few juveniles are used for this purpose and therefore it should not be a burden. I would love to hear the Minister’s answer as to why this should not happen.

The regret Motion, of course, is focused on a different point. I say to the noble Lord, Lord Paddick—to whom I forgot to apologise for not being here when he opened the debate: I ask him to forgive me—that there is a failure to keep us informed on this issue, and that is what I regret.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, I thank the noble Lord, Lord Paddick, for moving his regret Motion. I pay tribute to my noble friend Lord Haskel, who first alerted your Lordships to this issue. The House is also grateful, not only on this issue but generally, for the work of the Secondary Legislation Scrutiny Committee, which scrutinises every instrument that comes before Parliament. It is able to get into what a particular instrument does and then, by engaging with a Minister and through its reports, bring matters of concern to the attention of the House.

Covert surveillance is an important tool that is used to provide the evidence needed to prevent and detect crime. It is necessary, as there may be no other way to get the intelligence needed. Having said that, we have to have proper codes of practice in place and, where that involves young people under the age of 18—who are still legally children—it is of particular concern and importance. We have to ensure that children’s rights are protected and that there are adequate protections in place to take care of their physical and mental well-being and that proper risk assessment is undertaken.

The regret Motion before us rightly expresses regret that organisations concerned with human rights and the welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months. The Home Office certainly got its presentation of this change wrong. It used terms such as “administrative convenience”, which does nothing to reassure Members that the Government have got the balance right here. What should be of paramount importance is the welfare of the child being used as a covert intelligence source.

As we have heard, this issue was debated in the Moses Room in July—a debate led by my noble friend Lord Haskel—and during that debate I posed a number of questions to the noble Baroness, Lady Williams of Trafford, and I shall pose some more today. I hope she is able to give more reassurance to the House when she responds to the debate shortly.

Can the Minister explain carefully why the decision was taken to extend the term from one month to four months? Can she tell the House how the Government have satisfied themselves that these proposals satisfy Section 1 of the Protection of Children Act 1999 and the Convention on the Rights of the Child, which the United Kingdom ratified in 1991? Can she say how she has satisfied herself that the safeguarding and protection of the children concerned while they work as covert human intelligence sources is delivered? I am sure that she would not have brought this here if she were not personally satisfied.

Moving on to risk assessments, can the Minister tell the House how the rights of the child are protected? Can she outline what specific training or expertise a police officer or other security professional would have in respect of understanding the needs and rights of the child? In what circumstances would it be acceptable for someone who could represent the interests of the young person to not be present during meetings with the handler?

Can the Minister also deal with the issue of consent? How do we make sure that the consent is appropriately understood and given, both where the child’s parents or guardians are informed and in those instances where the parents are not informed or aware of what is happening? Indeed, they could be the people the child is seeking to monitor. The noble and learned Lord, Lord Judge, also raised important points that need answering by the Minister when she responds.

In conclusion, this is a very sensitive and important area of policy affecting vulnerable young people in some very difficult circumstances. It is right that the House uses every device available to it to assure itself that the Government have put the correct and adequate protections in place. Again, I thank both my noble friend Lord Haskel for raising this issue in the first place and the noble Lord, Lord Paddick, for tabling the regret Motion that has enabled us to debate it.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I also thank both the noble Lord, Lord Paddick, for introducing the debate and the noble Lord, Lord Haskel, for his work in bringing this issue to the committee’s attention in the first place. He may think that I am not really thanking him, but I am—it is important for your Lordships’ House to discuss these matters, particularly one such as this which has been in force for the past 18 years and only recently amended ever so slightly.

The debate allows me to both reiterate the importance with which the Government view the safeguarding of those small numbers of young people authorised as covert human intelligence sources and restate the enhanced safeguards that support the juvenile CHIS authorisation framework. We have recently strengthened those safeguards further, as noble Lords have mentioned.

I recognise the concern about the power more broadly, which has been remarked on before not just by me but by other noble Lords. The deployment involved is very small—it is unlikely to reach double figures. However, it is not a new concept. The 2000 order and the various iterations of the CHIS code of practice have governed the use of juvenile CHIS for almost two decades, ensuring that where it is necessary to authorise juveniles as CHIS, an enhanced authorisation and risk assessment is applied. I hope that the debate will assure noble Lords that the existing regime and our amendments to provide a legal framework place the welfare of the CHIS as the primary consideration; the interests of the child have been and will be paramount.

I will start by addressing the question of the noble Lord, Lord Paddick—the noble Lord, Lord Kennedy, asked me a very similar one—on why we have extended the authorisation for the juvenile CHIS from one month to four months and why we are increasing the period between renewals at a point when CHIS are being deployed in increasingly dangerous situations. Secondly, he asked why, when a monthly review of the case is required in any event, the review could not just continue to consider renewal of the authorisation—that is a question that the noble Lord, Lord Paddick, has now posed to me twice.

Maybe at this point it would be useful to clarify something that has been misunderstood about this issue. When the Regulation of Investigatory Powers Act, or RIPA, and the associated safeguards around the use of juvenile CHIS were taken through Parliament in 2000, it is important to note that no restrictions were placed on the use of this power. I am not saying that as a cheap point, but to illustrate how we have enhanced some of the safeguards. It is the case, and always has been, that the decision whether to deploy a CHIS is an operational matter. As I have said, public authorities do so very rarely and only where necessary and proportionate, and where they are satisfied that the welfare of the child is being protected.

While we have been very clear that these changes are in part a response to shifts in crime methodology and types since this legislation was introduced some 18 years ago, I would like to avoid creating the impression that the regulations laid before Parliament this summer somehow enable or facilitate a step change in the range of case in which the juvenile CHIS can be deployed. They do not; they simply enhance the safeguards to ensure the juvenile CHIS can be adequately protected in the rare circumstances in which they are used. We consider the change to the authorisation period to be an enhancement of the safeguards, rather than a reduction.

That takes me on to the second part of the question, which is also one that the noble Lord, Lord Kennedy, asked. Providing for an authorisation period of four months rather than one month enables the applicant to far more clearly set out how the CHIS will be expected to perform their role, and to deliver the investigative results over a reasonable timeframe. It allows the applicant to provide a fuller picture, explaining in detail why such an authorisation is necessary and proportionate in planning that deployment.

It is probably important to note that the chair of the JCHR put it very succinctly in her recent letter to the Security Minister, phrasing the reasoning, which the JCHR sees the logic of, as,

“the achievement of results is driven by the assignment rather than by the need to justify the next month’s extension”.

I think she makes a very important point. In response to the noble Lord, Lord Paddick, who asked about the reply to the chair’s second letter, I understand that it is on its way to her imminently.

The fact that the authorisation no longer needs to be formally renewed on a monthly basis means that the review, which the code of practice requires to take place at least monthly, can focus more heavily on the welfare aspects of the young person. It will of course consider whether the authorised conduct continues to remain necessary and proportionate, and these reviews will also help inform consideration of whether it is necessary and proportionate to renew the authorisation at the four-month interval. I think the noble Lord, Lord Paddick, might want to intervene there.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 6:00 pm, 16th October 2018

I am very grateful to the Minister. Can she clarify? Under the old system, the assistant chief constable or equivalent would have to renew the authorisation every month; under the new system, it is my understanding that the assistant chief constable will only be involved every four months if there is a renewal and is not involved on a monthly basis as under the old system.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I have this answer somewhere, if the noble Lord will bear with me. It is a statutory requirement for the authorisation to be at the rank of assistant chief constable. I think the noble Lord knows that. The monthly review is not a statutory requirement, but as a further safeguard we have included it in the updated code of practice.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

I am very grateful to the noble Baroness. The question was: is the monthly review undertaken by the assistant chief constable or by the officer who sought the authorisation to use the child as a CHIS?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I understand that the monthly review is done by the assistant chief constable. Have I still not answered the noble Lord’s question? The monthly review might be carried out by the authorising officer, but it is not a statutory requirement.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

I am very sorry. My understanding was that the monthly review is done by the officer who applied to use the CHIS, not by the assistant chief constable. Have I got that wrong?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I do not know whether the noble Lord has that right or wrong. I will have to come back to him on that point. Just so he does not think I am derelict in my duty, I did ask that question but I will have to come back to him on it.

I turn to the second question, which was not about the changes that we have made but about the existing distinction in the safeguards, where an appropriate adult must be present in all meetings with a juvenile under the age of 16, but not for those aged 16 and 17. The noble Lord compared this with rules around the interview of juveniles under caution, where interviews of all under-18s require an appropriate adult to be present. I point out that 16 and 17 year-olds can absolutely request that somebody be present—a social worker, an appropriate adult or even a lawyer—but it is not mandated. That probably will not satisfy the noble Lord, but the law recognises that parental responsibility diminishes as a child matures. There are therefore a number of areas where the law treats over-16s differently from under-16s. For example, they can apply for their own passports or join the military.

Internal police guidance on deploying juvenile CHIS contains detail on how to safeguard and promote the well-being of the juvenile CHIS, including how to assess their maturity and capacity to give informed consent, which the noble Lord, Lord Kennedy, mentioned, a requirement to ensure that handlers are properly trained to deal with young people—they have day-to-day responsibility for the CHIS and must raise any issues surrounding matters including the safety and welfare of the CHIS with those responsible for authorising their deployment—and requirements to consider all aspects of safeguarding the young person.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

I am grateful to the noble Baroness on that point. Is she saying that the officers concerned get special training in that respect to deal with young people in this situation?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

Yes. Any officer dealing with a juvenile will have safeguarding training.

The enhanced risk assessments required before a CHIS is tasked are reviewed and updated throughout the duration of an authorisation, and are also updated after an authorisation is cancelled and where contact is maintained with the CHIS. This applies to all juvenile CHISs, regardless of age, but it really should not be taken that the vulnerability of all those aged under 18 is not taken seriously when considering deployment as a CHIS. Rather, the risk assessments are made on a case-by-case basis by those charged with day-to-day dealings with the CHIS, including on their safety and welfare, and who are charged with relaying this to the authorising officer, who also has a role in this assessment.

In a recent letter to the chair of the JCHR, the Investigatory Powers Commissioner, Lord Justice Fulford, provided clarity on what his inspectors considered when inspecting public authorities which have authorised juvenile CHISs, and confirmed that the detailed focus of his inspectors is on the “duty of care”.

Turning to the very specific comparison, I think we are probably talking about a different scenario—one where the juvenile could be charged with an offence, and convicted or given a caution. With a juvenile CHIS, we are talking about a very different scenario. A child would need to give or confirm their consent to take on the role, and is under no obligation or pressure to act as a juvenile CHIS.

The third question raised by the noble Lord, and also by the noble Lord, Lord Kennedy, is how the needs of the specific child are prioritised, particularly with the UN Convention on the Rights of the Child in mind. The UK ensures that the principles of the convention are considered and realised through the approach taken in legislation and other measures, ensuring that the child’s rights and interests are safeguarded.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

On the previous point made by the Minister about there being no pressure put on a young person to act as a CHIS, is it possible, when a young person has come to the attention of the authorities—or may have committed a crime—that it would be suggested to the child that matters would not be proceeded with if they were to act as a CHIS instead?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I understand the noble Lord’s point. It would be unwise for me to stand at the Dispatch Box and say that that was the case, because I simply do not know. I can find that out. It would be rather cynical to take the view that these children, who are not perhaps not perfect in many cases, would be deployed just on the information that officers could get out of them or as a quid pro quo for leniency over other matters in which they may have been found wanting.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

I am just trying to understand the situation. It would be nice to hear from the noble Baroness at some point—maybe she can write to us. It should obviously always come to the attention of the authorities through various means, such as intelligence. However the authorities come to it, what are the circumstances such young people would find themselves in with the authorities?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I will certainly write to the noble Lord on that matter.

The legal framework governing the authorisation and the use of the juvenile CHIS, when taken as a whole, is clearly capable of being exercised in a way which is consistent with the UN Convention on the Rights of the Child. The 2000 order, the supporting guidance provided in the CHIS code of practice and the internal guidance applied by public authorities seeking to use juvenile CHISs, all ensure that the welfare of any juvenile being considered for deployment as a CHIS is the paramount consideration.

Each part of the legislative framework is designed to ensure that the authorisation of a CHIS under the age of 18 is subject to enhanced safeguards, reflecting the need to consider the welfare of the child. The Regulation of Investigatory Powers (Juveniles) Order 2000 requires enhanced risk assessments to accompany any decision to use a juvenile CHIS, which are updated to reflect developments during the course of the deployment. They take into account the physical and psychological welfare of that young person, and are also updated after the deployment if contact is made.

The police will also have regard to their broader safeguarding responsibilities when making these decisions, which was the point raised by the noble Lord, Lord Kennedy. Indeed, the National Strategy for the Policing of Children and Young People, endorsed and published by the National Police Chiefs’ Council in 2015, says:

“It is crucial that in all encounters with the police those below the age of 18 should be treated as children first. All officers must have regard to their safety, welfare and wellbeing”,

as required under Sections 10 and 11 of the Children Act 2004 and the United Nations Convention on the Rights of the Child.

As I said, internal police guidance on deploying juvenile CHISs contains detail on how to safeguard and promote their well-being, including how to assess their maturity and capacity to give informed consent, a requirement to ensure that the handlers are properly trained to deal with young people and requirements to consider all aspects of safeguarding the young person. This includes giving particular care to planning for the safety of the young person and maintaining that level of safety throughout the duration of the deployment.

The use of juveniles as CHISs, while not commonplace, is not a new development. The 2000 order and various iterations of the codes of practice have governed the use of juvenile CHISs for almost two decades. However, insufficient regard has been given to the importance of the independent oversight that commissioners have previously provided and now provide, ensuring the appropriate and lawful use of juvenile CHISs by the relevant public authorities. Such oversight includes inspecting public authorities, with the inspectors considering the detail of each case involving juveniles as CHISs.

In particular, I am sure that I am not alone in welcoming the undertaking given by the Investigatory Powers Commissioner, Lord Justice Fulford, to report on the issue, which I am sure will be extremely valuable. He has been able share some preliminary information, which I am sure noble Lords will be interested to hear. Twenty-eight returns covering a total of 43 forces in the period January 2015 to October 2018 show that 14 juveniles have been authorised as CHISs in the UK. The vast majority were aged 17 at the time of their authorisation and no juvenile has been authorised below the age of 15. I hope that that gives noble Lords some comfort. The commissioner has noted that the use of the juvenile CHIS is not taken lightly. In the majority of instances, the types of criminality on which they have provided information in the past three years are markedly serious and include murder, gang violence, high-level drug supply and the possession or use of offensive weapons.

The commissioner also considers that senior authorising officers take their responsibilities in this context very seriously and that the statistical returns provide considerable confidence that, against a backdrop of only occasional use of juveniles as CHISs, a significant number of requests are refused. He has found that the young person is either already voluntarily participating in the relevant criminality or has been compelled to be involved. He gives by way of example members of violent gangs or victims of child sexual abuse who are trying to escape and wish to help others similarly placed to get away from their abusers. He observes that the police have responsibilities under the government initiative, Every Child Matters, and will be expected to take into account the safeguarding principles that should underpin all decision-making in relation to authorisation of a juvenile as a CHIS.

Finally, the commissioner has also confirmed the rigorous nature of the oversight provided—although I am sure that there is no doubt about that. He notes that, if his inspectors have material concerns about an authorisation, these will be raised, discussed and set out in the inspection report. He states that there have been no concerns of relevance during the period from 2015. He notes that it would appear, therefore, that the safeguards have been effective, with the result that no case has been brought to his attention in which a juvenile CHIS has been inappropriately used, to their detriment.

I turn to the various questions that noble Lords have raised. The noble Lord, Lord Paddick, referred to the legal action being brought. We have received and responded to a pre-action letter from the children’s charity, Just for Kids Law, relating to the use of the juvenile CHIS. Noble Lords will understand that it would not be appropriate to comment at this stage.

The noble Baroness, Lady Hamwee, talked about consultation with organisations involved in safeguarding. There is no requirement to consult publicly on changes to the 2000 order, but we consulted broadly with the operational community, and the Investigatory Powers Commissioner’s Office was also involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS. The duty is to safeguard children and young people, and this was taken into account as part of the consultation.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 6:15 pm, 16th October 2018

Is the “operational community” operational in the children’s sector or is it police operational?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I understand that it would be police operational, but I will clarify for the noble Baroness whether operators in the children’s sector were also involved.

The updates to the CHIS code of practice in 2014 and 2017 were subject to formal public consultation, with no concerns raised about either the use of juveniles as CHISs or the safeguards that apply. But this provision has been in place for 18 years and it has probably had more scrutiny in the last two months than it ever had during those 18 years—and that is a good thing.

The noble Baroness, Lady Hamwee, also outlined an absolutely harrowing case study. I understand that those issues, if we are talking about the same ones, are being considered by the undercover police inquiry and that the Home Office is co-operating fully with the inquiry. We have responded to requests for information and have given the inquiry access to our files and records.

The noble and learned Lord, Lord Judge, raised the issue of further oversight. I think that I went through that point when we last debated this. It would not be a simple matter; it would be one for primary legislation. Nevertheless, I take his point. I hope he feels that, under the leadership of Governments of different political colours, the safeguards have been enhanced and are robust, and that there is strong and effective oversight in the form of Lord Justice Fulford.

The noble Lord, Lord Kennedy, talked about the public consultations on the provision. It was subject to statutory public consultations—most recently in 2017-18—and views from all were absolutely welcome. It is not incompatible with existing legislation—but, as I have just said, this House has given it more scrutiny than any other.

I have two more scraps of paper. The noble Lord, Lord Paddick, asked about the authorising officer. The authorising officer should, where possible, be responsible for completing subsequent renewals and any other related security or welfare issue—but I do not think that that answers his question. I now know what that question was, and the other scrap does not answer it, either, so I will get back to him on that specific point.

This House has given this really serious issue the time, scrutiny and questioning that it deserves, after 18 years of it passing largely unnoticed by either House of Parliament. I thank the noble Lord, Lord Haskel, for raising this in the first instance and the noble Lord, Lord Paddick, for raising it today.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I too thank the noble Lord, Lord Haskel, and the Secondary Legislation Scrutiny Committee for bringing this provision to the attention of the House. As he said, using children in this way puts them in danger, and if any of us were in any doubt about that, the harrowing story that my noble friend Lady Hamwee told the House clearly indicates that.

The noble and learned Lord, Lord Judge, made the important point that surveillance commissioners formerly and now judicial commissioners review the deployment of child CHISs after the event. There is now a recognised definition of a child as a person under 18. We should be talking about child CHISs, not juvenile CHISs, in this debate. An eminently sensible suggestion was made. Under the Investigatory Powers Act, many surveillance powers are subject to the double lock whereby both a senior officer and a judicial commissioner agree to the use of the surveillance technique. Why can that not be used in this case?

The Minister kept talking about the enhanced safeguards provided by these regulations. We still do not know whether the independent senior officer—the assistant chief constable—will be looking at these cases every four months instead of, as previously, having to look at them every month because the assistant chief constable could authorise for only one month at a time. We still do not know who is doing the review. If it is being done by the officer who applied to the assistant chief constable, rather than by the assistant chief constable himself or herself, I do not think anybody could describe that as an enhanced safeguard.

The Minister said that a child being interviewed under caution for a criminal offence is not comparable with being recruited as a CHIS. It is far more dangerous to be recruited as a CHIS than it is to be interviewed. The fact that 16 and 17 year-olds can be recruited as CHISs without an adult being present but cannot be questioned about a criminal offence does not strike me as an enhanced safeguard. Whether the legal framework governing the authorisation and use of juvenile CHISs, when taken as a whole, is clearly capable of being exercised in a way that is consistent with the UN Convention on the Rights of the Child is an issue that the courts will be asked to consider. Therefore, on that question we perhaps do not need to take things further today.

I am very grateful to the Minister not only for the time to debate this twice, once in Grand Committee and once in the Chamber, but for the time she has spent discussing these issues with me and trying to clarify what we need on the record. Unfortunately, I do not feel that we have got there this evening. There are unresolved matters which the Minister has agreed to write to noble Lords about. At this stage, I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 6.28 pm.