Amendment 12

Covert Human Intelligence Sources (Criminal Conduct) Bill - Report (2nd Day) – in the House of Lords at 2:20 pm on 13th January 2021.

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Lord Young of Cookham:

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 statementThis amendment would prohibit the granting of criminal conduct authorisations to children.

Photo of Lord Young of Cookham Lord Young of Cookham Conservative

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.

My concerns with the government amendments in this group are threefold. First, the proposals go no way to tightly defining the exceptional circumstances in which a child can be deployed. As I have said, there is an element of subjectivity about this. What level of risk of harm do the Government consider it appropriate for a child or, indeed, a vulnerable adult to endure? Secondly, the additional “protections” provided appear to be minor additions, or mere reflections, of pre-existing measures already found in the code of practice or the order. Thirdly, the supposed safeguards are provided by way of secondary legislation. My preference would be for any provisions to be detailed in the Bill itself, given the lesser amount of scrutiny provided to such instruments, as well as the fact that it is much easier for future Governments to remove, amend or water them down, should they so desire.

Amendment 13 extends the exemptions to vulnerable adults and victims of trafficking and many of the argument are similar, so I will not repeat them.

Finally, I have co-sponsored Amendment 24, along with the noble Baronesses, Lady Kidron and Baroness Hamwee, and the noble Lord, Lord Kennedy of Southwark. While that amendment would not prohibit the practice entirely, it would serve as a marked improvement on the status quo and ensure that the circumstances in which such groups are deployed are truly exceptional. There would be a guarantee that they could be engaged only where such authorisation is necessary and proportionate, considering the welfare of the source. The practice should be compatible with, and not override, the best interests of sources under the age of 18. Deployment could be granted only after all other methods to gain information have been exhausted, and if the source is not at risk of any reasonably foreseeable harm, both physical and psychological, arising from such deployment.

These requirements should make the deployment of children, vulnerable adults and victims of trafficking very difficult indeed, and impossible where there exists any risk to their physical and psychological well-being—risks that are certainly imposed on many of those currently deployed.

Depending on the contributions to this debate, particularly those of the official Opposition, I reserve the right to test the opinion of the House on Amendments 12 and 13, but I hope that the noble Baroness, Lady Kidron, when the time comes, will press Amendment 24 if it is not accepted by the Government. I beg to move.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour 2:30 pm, 13th January 2021

My Lords, the noble Lord, Lord Young, has spoken passionately and eloquently about protecting children, as he did in Committee. He made an excellent start to this debate.

I shall speak to Amendment 14, which prohibits the authorisation of criminal conduct by children without specific prior judicial approval. I thank the Minister for arranging for my noble friend Lord Dubs and me to meet officials in the Home Office to discuss this amendment. This was useful and informative but my concerns remain about the use of children in criminal circumstances.

The Joint Committee on Human Rights, of which I am a member, reported on the Bill last November. The government response to the report was published on Monday and makes substantial reference to criminal conduct by children, for which I am grateful. I shall refer to those reports.

I come to the Bill as someone who has worked with children—anyone under the age of 18, as defined in the UN Convention on the Rights of the Child—for many years. I am not sentimental about children, but I believe that they have rights as set out in the UNCRC— not just legal rights, although they are important, but moral and ethical rights such as protection, safety, family life and the right to be heard. Societies that nurture, cherish and attend to the total welfare of children are civilised societies. No society should endanger children. They need protection but also empowerment to take responsibility for themselves and others, and to learn to express opinions constructively. I like to think that the UK aspires to these principles of the UNCRC which it has ratified. We are fortunate in this country in having an articulate, dedicated voluntary sector for children that keeps us vigilant to their needs.

I cannot see how a child could be used to commit a criminal offence without there being a risk of danger, physical or psychological. As the noble Lord, Lord Young, said, I would prefer children not to be working as CHIS at all, but if they do we must make the situation as watertight as possible. I and other noble Lords know of cases where children have been let down and exploited by systems, and fallen through the net to physical and psychological harm, sometimes death. That must be prevented at all costs. It is why my amendment seeks high-level judicial approval before a child can take part in criminal conduct. The organisations Justice, Just for Kids Law and the Children’s Rights Alliance for England call that “meaningful safeguards”.

Amendment 24 in the name of the noble Baroness, Lady Kidron, and other noble Lords is very worthy. The noble Lord, Lord Young, referred to it as a useful advancement. I recognise also that she and her co-signatories are people who also care deeply about children’s welfare. That amendment extends additional protection not only to children but to vulnerable adults. That is important but, and this is a big “but”, it does not provide for independent judicial scrutiny of a CCA being made in respect of a child or other vulnerable person. It imposes a requirement that there should be exceptional circumstances before an authorisation is granted and makes it clear that other interests cannot be more primary than the child’s, and that it must have been determined that the child will not be in any danger of foreseeable physical or psychological harm. That amendment also makes compulsory the presence of an appropriate adult for all under-18s when meeting with the investigating authority. It requires any use of a CCA in respect of a child to be reported to the Investigatory Powers Commissioner within 18 days.

Amendment 24 meets most of the concerns of the Joint Committee on Human Rights about the welfare of children under CCAS. However, a major concern is that there is no independent decision-maker—only independent review after the event by the IPC. This system can pick up an abuse of power only when it has happened. Tough, independent assessment of whether a child should be used as a CHIS should be made before the child moves into a dangerous situation. I am sure the people working with these children are caring and professional, but this is such a serious issue for children that a judicial commissioner should look at each case and make the final decision.

I know that the Minister, speaking on different amendments on Monday, said that she could not agree with prior authorisation. I am not sure why. It may be that she can tell me more. There are not that many children in such a position—between 12 and 17 between 2015 and 2018. Undue delay would therefore be unlikely and the children’s cases would have double scrutiny, which is what they deserve, due to the seriousness of what they are being asked to do. If Amendment 24 is accepted by the House, I shall not put my amendment to the test but will suggest further action. The government amendment does not add much to what we have already heard, and we need to go further. That amendment, however, recognises that there are concerns about authorising children as CHIS and makes efforts at reconciliation, as the noble Lord, Lord Young, said.

This issue is not new. The Joint Committee on Human Rights raised concerns in 2018 and 2019 with the Minister for State for Security and Economic Crime and the Investigatory Powers Commissioner. In 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 of the European Convention on Human Rights. The court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was

“liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”

The Joint Committee on Human Rights concluded that the Bill must be amended to exclude children or to make clear that children may be authorised to commit criminal offences in only the most exceptional circumstances. I suggest that those exceptional circumstances should have independent consideration at the highest level.

The Government’s response to the JCHR report gave considerable space to discussion of these issues in relation to chapter 6 of the report. But they came up with, to me, a rather tenuous argument, stating that

“young people may have unique access to information that is important in preventing and prosecuting gang violence and terrorism. This helps remove from the cycle of crime not only the young person … but other young and vulnerable individuals caught in criminality. We should also acknowledge that by universally prohibiting the authorisation of young people to undertake criminality we are increasing the risks to them and placing them in an even more vulnerable position. If criminal gangs … know that a young person will never be authorised by the state to undertake criminality, such groups will be more likely to force young people to engage in criminality, confident in the knowledge that they could never be a CHIS”.—[Official Report, 3/12/20; cols. 937-8.]

I can see absolutely no logic in that statement.

Indeed, a former undercover police officer, with experience of being a CHIS, has said that

“Children recruited as informants are also highly likely to end up getting drawn back into criminality and feeling trapped in their situation.”

I am aware that the noble Baroness, Lady Hamwee, knows something about those situations.

A leading and highly respected child psychiatrist has said that

“the deployment of children as a CHIS could incur significant … emotional damage to the child and could in fact engender the creation of new criminals by placing them in criminogenic environments.”

This is not child protection; it is not respecting children’s rights. It is dangerous and potentially destructive. Every care must be taken, and we have a duty to see that that happens.

I have the greatest respect for the Minister and admire her common sense, sensitivity and practicality. Might I suggest that this whole operation needs to be taken away and looked at again very carefully, with an independent review? This should cover: the types of involvement by children; how children are assessed as suitable for such work; how the views of children, parents if appropriate and those accompanying children are taken into account; what psychological support is offered; and how children are assessed and supported after their involvement as CHIS, and for any long-term effects.

This may result in a recommendation not to use children in this fashion—I would welcome that—or in more stringent methods of prior independent authorisation being employed, as suggested by my amendment. The current situation in which children are used as CHIS cannot remain the same. I hope that the Minister will consider this suggestion. This issue is not going to go away; indeed, it is likely to intensify. I look forward to her comments and thank noble Lords for their time.

Photo of Baroness Kidron Baroness Kidron Crossbench

I speak to Amendment 24 in my name and that of the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. This sets out the safeguards and protections that should exist if we ask a child to commit a crime as a covert human intelligence source. I pay tribute to the work that many have done on this issue, including the noble Lords who support this amendment; the noble Baroness, Lady Young of Hornsey, who raised these concerns so admirably in Committee; the right reverend Prelate the Bishop of Durham, who has left us with no doubt where right lies; and my noble friend Lord Russell of Liverpool, who has taken time to go through the interlocking amendments and considerations with me.

I also acknowledge the tireless efforts of Stella Creasy MP, in bringing this issue forward in the other place, and the children’s rights advocates Just for Kids Law, which brought the court case on this matter last year. I have taken up the baton for this work at their request. As many of your Lordships know, my time, both in the House and beyond its walls, is spent as an advocate for children’s rights online and offline. I have great sympathy for the other amendments in this group, but I speak to Amendment 24 only and will make some points about government Amendment 26. I note and take to heart the words of both the noble Baroness, Lady Massey, and the noble Lord, Lord Young of Cookham; while I have their support for what I propose, it is the absolute minimum that children require and is not ideal, in their view. I declare my interests set out on the register.

Children do not all have the same circumstances. It is simply a fact that some children will not be as well-loved as others, some not as well-cared-for and some not as well-behaved. None the less, whether they are loved, cared for or well-behaved, any person under the age of 18 is a child. In a context where a person under the age of 18 is being asked to be a covert source and do something illegal, we must ensure that they remain a child in the eyes of all who play a part. In every other interaction with the criminal justice system, we try to remove children from criminal activity to take them away from harm and towards safety, but before us is legislation that formalises our ability to do the opposite.

The Government have said that

“Participation in criminal conduct is an essential and inescapable feature of CHIS use, otherwise they will not be credible or gain the trust of those under investigation.”

If, and it is a big “if”, we make this extraordinary demand of a child, we must set a very high bar for the circumstances in which that happens. Amendment 24 does just that. It writes into the Bill the principle that no child should be asked by the state to commit a crime except in exceptional circumstances. It determines that a child can be asked to do so only when there is no possibility that they will come to harm. It upholds our obligations, under the Convention on the Rights of the Child, to treat all children under 18 as children. It ensures that all children get the support of an appropriate adult, currently offered only to children under 16.

If a child is arrested for shoplifting at 16 or 17, an appropriate adult would oversee their interactions with the police on the understanding that there is a fundamental power imbalance between the accused and the police, particularly when the accused is a child. Under the Government’s current plans, there is no such obligation to appoint a person for children who are 16 and 17, meaning that they can be recruited by the police with no one knowing—not their parents or a social worker—and then asked to inform on people, even their own parents, and to remain in dangerous situations, at great personal risk. They have no legal advice or independent voice to question or support.

The Government have suggested that this is because

“a child becomes increasingly independent” and mature

“as they get older and that parental authority reduces accordingly.”

It is true that children have an evolving capacity as they approach adulthood, but it would be ludicrous if we determine in law that a child who shoplifts is in need of a guardian when they talk to the police, but that a child, under these most extreme of circumstances, who is asked to commit crimes at the behest of the police is deemed sufficiently mature and in no need of such support. This anomaly flies in the face of our traditions and culture and is a failure to uphold the Convention on the Rights of the Child, to which the UK is a signatory.

Amendment 24 also extends the protection of having a second pair of eyes and the principle of exceptional circumstances to vulnerable adults—victims of trafficking or modern slavery who may be older than 18 but are no less at risk of being placed in harm’s way. It complements the amendment of the noble Lord, Lord Anderson, which will ensure that the IPCO needs to be notified of a CHIS authorisation, by ensuring that it is also notified about the exceptional circumstances that justify the use of a child or vulnerable person.

Before turning to the government amendment, I will say something about the circumstances of the children who find themselves in this situation. Most of the children of whom we will demand this extraordinary service, on behalf of the state, are already vulnerable: those 46,000 children in the UK that the Children’s Society estimates are in gangs; those in exploitative relationships; those in criminal families; or those like the 17 year-old girl in the tragic story that the noble Baroness, Lady Hamwee, set out previously, who, while being prostituted by her boyfriend, was asked to continue in that situation to provide the police with information, and did not pull out until after she had witnessed a murder. She was a child in a situation spiralling out of control.

It is true that these children are few—reportedly, 17 children over three years—but even one child deserves the protections I have outlined, and the fact is that, in June 2018, the then Security Minister said that there was “increasing scope” for young people to be used as CHIS, since they are increasingly involved in criminal activity, particularly county lines gangs. This unhappy logic means that, as criminals increasingly exploit vulnerable children, we will demand their involvement in crime, on behalf of the state, more frequently. These are not simply covert human intelligence sources; they are also kids and must be treated as such.

I turn to the differences between Amendment 24 and government Amendment 26, which has been brought forward to tackle the same issue. It is a welcome admission that as it stands the legislation does not offer the safeguards that children require, but for the most part Amendment 26 simply repeats the status quo. It relies on amending the Regulation of Investigatory Powers (Juveniles) Order 2000. While Ministers may argue that it is better to keep all legislation regarding children and intelligence in one place, it can equally be argued that legislation that authorises criminality should also be in one place.

Where Amendment 24 writes into the Bill the principle of “exceptional circumstances”, Amendment 26 offers only secondary protections via an order that has been amended before without the full scrutiny of Parliament. Where Amendment 24 defines “exceptional circumstances” in a way that ensures that there must be no foreseeable risk of harm to the child, Amendment 26 states only that

“the person granting or renewing the authorisation believes that taking the relevant risks is justified.”

CHIS authorisations should involve only justifiable risks; this is not a sufficient test of exceptional circumstances where the CHIS is a child.

Amendment 26 states that children under the age of 16 cannot be used if they are asked to spy on their parent or someone who has parental responsibility. This is not additional; it already forms part of Article 3 of the existing RIPA order. Equally, the amendment says that the risks should be properly explained and understood by the child and that the best interests of the child should be the primary consideration. As we have already heard, this is also not additional; that we should act in the best interests of children is a right that all UK children already have. I have already pointed out at length the failure to consider the entitlements of 16 and 17 year-olds so I will not reiterate that but, given that the Government’s plans do not offer them their entitlements, perhaps the Minister will say whether a child rights impact assessment has been carried out on the legislation, and why the Home Office feels able to ignore our obligations under the convention when the Department for Education has recently reaffirmed them.

Finally, proposed new Article 11 provides for children to be authorised to commit crimes for four months, but this is already the case. More worryingly, there is no limit to the number of times such an authorisation can be renewed—no maximum time limit that a child can spend undercover.

I do not doubt the good intentions behind Amendment 26, and I recognise that the Minister and her team have been active in trying to meet the concerns that so many noble Lords have outlined but, as I have set out the limitations of the Government’s amendment in some detail, I hope that she will agree that it does not go far enough and undertake to take another look. Nothing would make me and my fellow signatories happier than for the Government to adopt Amendment 24. It would bring clarity and transparency to those who demand such a sacrifice from a child, and it would ensure that children who may be in all sorts of trouble are protected in those rare times when staying in a place of danger may help to tackle the source of danger itself.

I have informed the clerk that I intend to test the opinion of the House. I ask for noble Lords’ support on behalf of children who find themselves in this extraordinary situation—children of all ages, children who are already vulnerable, children let down by so many adults and institutions that should have offered them protection but did not. Let us not be counted among them.

Photo of Lord Cormack Lord Cormack Conservative 2:45 pm, 13th January 2021

My Lords, it is a real pleasure to follow the noble Baroness, Lady Kidron. She spoke movingly, authoritatively and with passionate conviction, as did the noble Baroness, Lady Massey of Darwen, to whose amendment I added my name, and my noble friend Lord Young, who launched the debate on exactly the right note.

It was quite clear in Committee, when I tabled an amendment on this subject, that there was widespread concern in all parts of the House at the use of children. This is the single most serious aspect of the Bill. We are in fact being asked to pass into law something that in any other circumstance would be illegal. This conundrum was referred to by a number of speakers in the debates we had on Monday. Now we come to the nub of the matter.

I am grateful to my noble friend Lady Williams of Trafford for the attempt she has made with her amendment, but I agree emphatically with the noble Baroness, Lady Kidron, that it just does not go far enough. I am also grateful to my noble friend for affording me the opportunity of discussing this matter and my concerns in two hour-long meetings organised by Mr Arthur Lau in her private office. I am grateful to all those who took part. I was reassured on one or two issues. We will come to those at a later stage.

I was to some degree won over by the arguments of a senior police officer—clearly a man of unimpeachable integrity—who talked about the need to employ occasionally young people in tackling things such as county lines and sexual assault of young girls. He convinced me to some degree to table my Amendment 19, which would in exceptional circumstances allow 17 and 18 year-olds to take part as CHIS, but would draw the line at those aged 16. There are precedents for drawing the line at 16, such as the age of consent et cetera.

I am not sure whether I will put my amendment to the vote. It depends on what is said in this debate, particularly by my noble friend the Minister. There is a logic to the age of 16. It is a very sad fact that a great many crimes, many of them violent, are committed by 16 and 17 year-olds. Many of the stabbings in London and in other parts of the country have involved young people of that age and thereabouts. There is no point denying that county lines depend to a very considerable degree on the exploitation, manipulation and abuse of young people. I can see that there is a certain logic in using 16 and 17 year-olds in exceptional circumstances, much as I deplore and regret it.

However, I believe emphatically that the line has to be drawn somewhere. If it is drawn at 18 by the will of your Lordships’ House I shall be entirely content. If it is drawn at the age of 18 but with very real conditions attached, as they are in the amendment from the noble Baroness, Lady Kidron, I will be tolerably satisfied that we have made a step forward, but there is much to be said for being clear and emphatic, and for having a specific age in the Bill below 18 but not below 16 in any circumstances.

It is a very troubling provision of this Bill. The nation has rather lost its moral compass in the last two or three decades, and I believe very strongly that this is not something that we should gently accept. We have to put back into public and private life the standards that, formerly, when I entered the House of Commons in 1970, were more or less taken for granted. I say to my colleagues on the Front Bench that I cannot support the Bill as it is in this regard. Much as I accept totally her utter sincerity, I cannot accept Amendment 26, put down by my noble friend, as being “adequate and fit for purpose”, to quote the noble Lord, Lord Reid of Cardowan—a phrase that has now entered the lexicon.

We are contemplating doing something that is completely against the grain for those of us who believe in the rule of law and a law-abiding society. If we are to do it, with the greatest of reluctance, we must heed the words of my noble friend Lord Young, who has put his name to Amendment 24, the noble Baroness, Lady Kidron, who introduced it so passionately and movingly a few minutes ago, and the noble Baroness, Lady Massey of Darwen. We must not let this Bill leave your Lordships’ House unamended.

The very best solution would be to have no Division at all today, but for my noble friend the Minister to hold a round table with all those who have concerns and to try to put down something in her name which reflects those concerns. If that is not done, I reserve my right to move my amendment. I also declare unequivocally that, if she does not do that, I cannot give my vote to government Amendment 26, or withhold my vote from the amendment that seems to be commanding a consensus within your Lordships’ House.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 3:00 pm, 13th January 2021

My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.

Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.

I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.

Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.

On the one hand, we want to support and protect the people described in the amendment

“against significant harm or exploitation”.

On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.

The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.

The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.

I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.

There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.

I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.

The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.

Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.

I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.

I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.

I will also address the noble Lord, Lord Cormack, his wonderful speech and the principled positions that he has explained throughout the passage of this legislation. He is quite right that, if even 18—the age given in the United Nations Convention on the Rights of the Child —is not good enough, surely 16 would be an absolute line. Is there no absolute when it comes to child protection?

This is a very upsetting part of this debate, and I cannot help but recall that, on an ongoing basis, when it comes to assessing young people in another area of Home Office practice—asylum seekers—the Government take a very different view. When a young person presents as an unaccompanied minor to claim asylum in our country, looking as if they might be under 18 years old, the Government and Home Office take the opposite view to the one they take here: they are very quick to say that, actually, that young person is much older but just looks younger than they are.

When it comes to county lines or any other real and pressing danger to our communities, it would be perfectly possible for state agencies to engage and employ 19, 20 or 21 year-old people who look younger than they are. That would square the circle without doing this terrible injustice—this enormous breach of human rights—and putting our children and young people in danger. So, I urge all Members from across the House to get behind Amendments 12, 13 and 14 and to follow the lead of the noble Lord, Lord Young.

Photo of The Bishop of Durham The Bishop of Durham Bishop 3:15 pm, 13th January 2021

My Lords, it is humbling to follow the passion and wisdom of the noble Baroness, Lady Chakrabarti, and the wisdom of the noble Lords, Lord Young of Cookham and Lord Cormack, and the noble Baronesses, Lady Massey of Darwen, Lady Kidron and Lady Hamwee. I associate myself strongly with the points they have made.

I speak in favour of Amendments 12 and 14, in the names of the noble Baroness, Lady Massey of Darwen, and the noble Lords, Lord Dubs and Lord Cormack, to which I have been pleased to add my name. I also speak in favour of Amendment 24, whose sponsoring group, made up of the noble Baronesses, Lady Kidron and Lady Hamwee, and the noble Lords, Lord Kennedy of Southwark and Lord Young of Cookham, is wonderfully cross-Bench.

Therefore, it will be clear that my concerns relate to the situation of those who are children in law because they are under 18. My absolute preference lies with Amendment 12, which would make it illegal for anyone under 18 to be used as a CHIS. However, concerned that this will not be agreed, I wish to ensure that full safeguards are in place for those who are children in law. In doing so, I recognise, as we all do, that the number who are so used is very small and are mainly 16 to 17 year-olds.

I apologise to the House that, due to the time taken in Committee, it proved impossible for me to speak on the two amendments to which I had added my name when they were finally taken, and I am very grateful to my right reverend friend the Bishop of Carlisle for speaking for me.

I am here to reiterate the simple, immovable, moral truth that children must be treated as children, as many of my noble friends argued in Committee. It is not a question of ifs, buts or whens. We, as adults, have a moral obligation to protect children and safeguard their care and well-being in all respects: physical, mental, social and spiritual. Knowingly placing a child in harm’s way and encouraging them to remain in harmful situations or with harmful behaviours may be in our interest, but it is not in the child’s best interests. This is exacerbated by the likelihood that the small number of children recruited as CHIS are from a potentially vulnerable background and are already deeply damaged. We should be seeking their healing, not risking damaging them further.

In Committee, my noble friend the Minister said that

“becoming a CHIS can, potentially, offer a way” for a child

“to extricate themselves from such harm.”

While this sounds like a laudable thing, before being able to extricate the child, are we not potentially exposing them to more harm by encouraging them at times to remain involved in a criminal situation or behaviour? The Minister also argued in Committee that

“appropriate weight is given to a child’s best interests”, but being a CHIS is surely never in a child’s best interests. The use of child CHIS was justified in Committee through how it can help to remove them and others

“from the cycle of crime”.

However, is the hypocrisy here not evident in first encouraging the child to continue in criminal behaviours and settings? We rightly condemn the use of child soldiers around the globe for the atrocity that it is. Let us not slip into a dangerous grey space where we permit the use of children to fight our battles against criminal gangs and county lines. Let us protect their vulnerabilities.

The various arguments made in Committee conveying how the use of child CHIS has not yet been abused were exactly what we wished to hear; why not ensure that this will always be the case? I note the remarks of the Minister that

“the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the Official Report, 3/12/20; col. 937.]

It is reassuring to hear that that has been the case to date. However, the purpose of this Bill is to put the future use of CHIS on a clear and consistent statutory footing. It seems to me that placing in this Bill the most comprehensive safeguards possible when it comes to children is wholly in keeping with the Bill’s overall purpose. It is a necessary step for keeping the welfare and well-being of children as a primary consideration.

I welcome the Government’s recognition in their Amendment 26 of the need to have authorisation in the Bill and not simply in a code of practice. I also welcome the need to protect those aged under 16 more fully than 16 and 17 year-olds. However, I remain concerned that the proposals in Amendment 26 do not go far enough—as already argued by the noble Baronesses, Lady Kidron and Lady Hamwee. I want to see the independence of a judicial commissioner in place for the authorisation of those aged under 18 as CHIS, with the parameters laid out in Amendment 14.

Amendment 24 has also been very carefully worked through by a wide range of organisations and people involved in concerns around the protection of the child. Therefore, I continue to support both these amendments. They recognise that our first and most important duty is to protect and support children and vulnerable people. If the mind of the House is tested on these amendments, I shall vote in favour of them. If the House supports them, I hope that the Government will undertake to accept them.

In relation to the proper protection of children, I reiterate my preference for Amendment 12. It would prevent the granting of criminal conduct authorisations to any child in clear and unambiguous terms. This is the clearest and simplest way of guaranteeing the protection of children and resisting the temptation to use them as assets in the fight against crime. I recognise that many in this House may see that as too absolute, thus I am also glad to put my name to Amendment 14, which would at least establish more effective safeguards for those aged under 18 in ensuring prior judicial approval that explicitly considers the potential for both physical and psychological distress.

I also support Amendment 24, which lays out specific and clear additional safeguards to ensure that children can be used only when there is no foreseeable risk of physical or psychological harm—or, I wish it also said, spiritual harm. It also lays out that the circumstances should occur only as a last resort and with the oversight of an appropriate adult. Combined, they amount to much better protections than those in Amendment 26. It is inherently wrong for those aged under 18 to be used as CHIS, hence my support for Amendment 12. If not that, we need the amendments that protect children most effectively. Let us keep the best interests of children at the fore.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham. His speech was passionate, as was the speech made by the noble Baroness, Lady Chakrabarti. I have raised this issue here in your Lordships’ House several times over the years; it has never caught fire in this way. I do not understand. The noble Lord, Lord Young, spoke about public incredulity. If I ever mention this issue to members of the public, they are astonished that it was allowed to happen. This issue has caught fire because a Tory Lord—an hereditary Baronet—raised it in a very principled way. Suddenly, people heard it. I would welcome comments on why it was not heard from a Green. Why is this? Do people think I am too radical? Do they think I am making it up? I have no idea. I am sure that some noble Lords might like to comment on that.

In a previous day of debate this week, the noble Lord, Lord Cormack, corrected my use of “police spies” as being too limited because we are debating spying not only for the police but also for the security services and a host of other organisations. I accept that telling off in good grace. I could just use “spies” in the hope that it does not sound too glamorous.

On the appropriate words to use, the phrase “juvenile CHIS” is a fantastic piece of wordsmithing because it so effectively obscures what we are actually talking about. These are child spies. They are children and young people who have got themselves into some sort of trouble. When they are caught by the authorities, instead of being rescued from that dangerous situation, taken into care and helped to rehabilitate themselves and change their lives, they are being returned to harm’s way. They are put into what could be deadly danger. How is this even conceived of by the Government, the security services and the police? How on earth can they not see, as the noble Baroness, Lady Chakrabarti, said, that this is state-sponsored child abuse—a phrase I have used before.

After years of probing the Government on the use of child spies, I am yet to see or hear a single example of how the risk to the child is justified. I have heard stories of children being used, especially for county lines policing, where gangs use children and young people to extend their networks into smaller towns and expand their reach. However, we all should know that closing down any drug ring or network is a very temporary hitch in the supply of and demand for drugs. A rival or reconstituted gang will be up and running in days, if not hours. We have to understand that using children in this way is unacceptable because, in addition to everything else, it does not work.

That moves us on to drug policy, which needs drastically changing. I will look to the noble Lord, Lord Young, to pick that up in future. We can work together on amending drugs law because that urgently needs work.

I also deeply regret that the scope of this Bill is limited to prevent us banning the use of child spies entirely, but at least we can prevent them being permitted and encouraged by the authorities to commit further crimes. Obviously, I support Amendments 12 and 13, which have my name on. I also support Amendment 14. I am slightly iffy on Amendment 19, but I can see its value. If the noble Lord, Lord Young, does not push his amendment to a Division, I will vote for Amendment 24 in the name of the noble Baroness, Lady Kidron, because it is of value and it is better than nothing—but it is not as good as Amendment 12. I wish that the Labour Front Bench supported Amendments 12 and 13.

I was brought up in a Labour-loving household. My parents voted Labour all their lives, and their perception of the Labour Party was that it would always fight the big battles for the little people and that we could trust it to do the right thing. I would rather see a Labour Government than a Conservative Government, but, quite honestly, I feel that Labour has failed us here and I am extremely sad about that.

I am very grateful to the broad coalition of noble Lords who are clearly against the use of child spies. All the amendments are cross-party, which should give the Government some pause for thought. If there is so much feeling about this issue among a mixed bunch of Peers, I think they should go a little further than their attempt with Amendment 26. Therefore, I urge the noble Lord, Lord Young, to push his amendment to a vote, but I shall understand if he objects to doing that, in which case I shall support Amendment 24.

Photo of Lord Dubs Lord Dubs Labour 3:30 pm, 13th January 2021

My Lords, it is a privilege to take part in the debate on this amendment, with the many excellent speeches that we have had so far.

First, I thank the Minister for having arranged for my noble friend Lady Massey and me to meet some of her officials and police officers, and for the opportunity to have a long debate about the issues concerning children.

In introducing Amendment 12, the noble Lord, Lord Young, referred to the fact that I changed my mind in Committee, as though that was a very eccentric thing to do. I thought that the point of debates was to persuade other people to change their minds. He is absolutely right: I did change my mind—from a relative position to an absolute position on children not being used as CHIS—so I thank him for referring to that.

My noble friend Lady Massey set out the ground extremely well, competently and coherently. She and I are both members of the Joint Committee on Human Rights and, in a way, she has spoken for me as well, so I shall make only a few brief comments in support. I also welcomed the very powerful speech of the noble Baroness, Lady Kidron, although her amendment does not go as far as I would like. My preference is to fully support the amendment of the noble Lord, Lord Young.

I have three points to make. The first concerns the safety and well-being of children, the second is to do with mental health and the third concerns informed consent, and I want to say a brief word about each.

First, it is slightly curious that public authorities whose job it is to protect the welfare, well-being and safety of children should also, in a sense, be complicit in authorising or encouraging them to commit criminal offences. I fear that involving children as CHIS can damage their welfare and safety, and cause them harm in their lives many years later. We are subjecting them to enormous pressures by doing this and I am not happy about it.

Secondly, as an extension of that argument, there is the question of mental health. We are talking about young people who must, in the main, be extremely vulnerable. Very often they have deprived backgrounds, they have not had much going for them and they have suffered physically and emotionally. The mental health considerations seem sufficiently serious for us to say that we do not want to use children in this way.

Thirdly, there is the question of informed consent. My understanding is that, before anybody can become a CHIS, they have to give their informed consent. I just wonder whether a young person who is vulnerable, already involved in criminality, not sure of themselves in life and possibly with mental health problems can give their informed consent to taking part in these activities. How can a young person understand the full implications of going along with this? It seems a crucial step and they could be damaged for many years; indeed, they might never recover. It is a dangerous thing to ask them to do and I would prefer that we did not do so.

That is why my first preference, if I may put it that way, is for the amendment in the name of the noble Lord, Lord Young. My second preference is for Amendment 14, in the name of my noble friend Lady Massey. My third preference is to support the noble Baroness, Lady Kidron. I do not think that we can leave the Bill as it is. It is unacceptable that we should subject young people to such a dangerous situation. It is not a healthy or proper thing to do, and I hope that we will agree to one of the amendments—preferably that of the noble Lord, Lord Young.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.

My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:

“The Bill must be amended to exclude children or”—

I agree in particular with this part—

“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”

Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.

One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.

I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.

That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.

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 am very pleased to take part in this debate. We have already heard some truly excellent speeches and I am sure there are more to come. I support Amendment 24, which has been so ably proposed by the noble Baroness, Lady Kidron, and am very happy to have added my name to it. I have huge respect for the noble Lord, Lord Young of Cookham. I agree with virtually all the points that he made in proposing Amendment 12. I join him in paying tribute to the noble Baroness, Lady Williams of Trafford, who always engages with the House on issues and seeks to find a way forward. It is important that we do that. However, what we have from the Minister at the moment in government Amendment 26 does not go far enough to address the concerns we have heard from around the House, although I accept that considerable efforts have been made to seek a way forward. I know that those efforts are still going on.

I certainly want to seek an improvement and get something detailed into the Bill that provides further protections for children; that is the most important thing for me. If we are to deploy CHIS then, in the very rare and exceptional circumstances where we need to do that, we must have those protections. That is why I support Amendment 24: I believe it sets out the way to get the right balance and, in those exceptional and rare circumstances, allows for that better oversight to be provided. In a way, I will vote for Amendment 24 to give the Government an opportunity to carry on discussions with people around the House and outside it. If we pass it, I hope that a better amendment will come back from the other place on ping-pong that builds on Amendments 24 and 26, and seeks to address the concerns that the Minister can surely hear from around the House, to get something in the Bill that is better than what we have now.

For that reason, I will not be supporting Amendment 12 by the noble Lord, Lord Young; I just do not believe that the Government are going to support that position, so it is a practical consideration that leaving a little room there for the exceptional circumstance, with the right protections, is the way to go. We need to build on the constructive discussions that we have had outside the House, and the debates we have had on this issue in the House, to find the way forward. I want to apply protections for children and vulnerable adults, and the process outlined in the amendment is the way to get them.

I bring my remarks to a conclusion by paying tribute to the many noble Lords around the House who have been engaged in this issue. I thought my noble friend Lord Haskel raised it on an SI some years ago, so I do not know who started it; maybe it was the noble Lord, Lord Young of Cookham, or the noble Baroness, Lady Jones. Certainly a number of people have raised this issue and everyone has been vitally concerned to protect children, put safeguards in place and get us to a better place, so I thank everyone in the House who has been involved in this. I thank the noble Baroness, Lady Kidron, for tabling her amendment and my honourable friend in the other place, the Member for Walthamstow, Stella Creasy, who has been heavily involved.

I believe that this is one of those debates in the House where you can hear the concern on all Benches from numerous highly respected noble Lords. We as a House need to send Amendment 24 to the other place, which will enable us to get something back from the Government that I hope will satisfy all noble Lords and get us to a better place.

Photo of Lord Judd Lord Judd Labour 3:45 pm, 13th January 2021

My Lords, I support Amendment 25 because it seems essential for us to have safeguards in place if we go down this road at all. The noble Baroness, Lady Hamwee, spoke very convincingly on this matter. I am glad to support her on this and I do not suppose it will be the last time in my parliamentary career that I support her in her initiatives. While we are debating this group, I want to say how much I applaud Amendment 12 by the noble Lord, Lord Young of Cookham, and Amendment 19 by the noble Lord, Lord Cormack. In the operation of our society and our legal systems, we need some clear-cut cornerstones about what is permissible and what is not. I like the forthright language that they use in their amendments because it cuts out all the grounds for rationalising and talking ourselves into situations where we should not be at all. The point is that vulnerable people of the kind described in the amendments, and children, should not be involved in this kind of activity.

We are signatories to the conventions on the rights of children, and we have reaffirmed on many occasions our commitment to them. Are we just sentimentalists or are we real? If we are real, and if we want to give muscle to our expressed sentiments in those directions, that becomes very applicable in this kind of activity. We are also signatories to, and have frequently expressed our adherence to, the European Convention on Human Rights. I would always go further in this context and say that what matters even more is the Universal Declaration of Human Rights and the reasons why it was put in place. Again, if we are serious and not just sentimentalists, it is in matters of this kind that adhering firmly to the principles set out in those conventions becomes so important.

All these matters become particularly poignant—it is interesting that we have not dwelt much on this—given what is happening on the other side of the Atlantic. All of us, particularly perhaps in this Chamber, operate in the context of a political family in which it is expected and assumed that certain rules of decency, honesty and integrity will apply. We cannot be certain that will always be the case. I have always felt this about legislation: what matters is not just the people who are in place at the time of the legislation is passed, but how firmly that legislation establishes principles that it would be difficult for anyone who comes afterwards to vary. For that reason, it is significant to look at events in the States and wonder, when we talk about the kind of society that we want to be, whether we are really taking seriously our obligations, duties and concern for children and young people who have perhaps been asked to undertake activity that is very much against so much that is established as the norm for behaviour that is required in our society, for all the reasons that we have discussed on many previous occasions on this legislation. If we take those responsibilities seriously, we need the firmness of Amendments 25 and 19.

I am sure that I must be among many Members on all sides of the House who are deeply fearful about the implications of what is happening on the other side of the Atlantic. At moments such as this, where we still have the context of our own society—thank God—we need to be explicitly clear about what is acceptable and what is not. I cannot say more strongly that it is not acceptable for children to be involved in activity of this kind. That is the point: it is not acceptable; it is not something we can rationalise our way out of by saying that there are exceptions in this particular case. There are not; it is a principle that children should not be involved in such activity. Similarly, when we think of what vulnerable people have been through mentally and physically and all the traumas of their life, it is not acceptable to involve them in any way in activities which may have serious implications for their stability and well-being and for their safety.

From these standpoints, I am very glad that we have this group of amendments before us. I again say that the noble Lords, Lord Young and Lord Cormack, have been exemplary in stating a principle on which the rest of our activity should be founded.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, as the speeches that we have been listening to in this debate have made so very clear, this surely is the most difficult part of the Bill and, as we search for a solution, for each of us making up our own minds this group presents a real challenge. The solutions range from an absolute bar—the “clear-cut cornerstones”, as the noble Lord, Lord Judd, has just described it—on granting authorisations to anyone under 18, in Amendment 12, and anyone under 16, in Amendment 19, to which the noble Lords, Lord Young of Cookham and Lord Cormack, spoke so movingly, to the more nuanced and carefully worded procedures proposed in Amendments 23, which would require the prior approval by a judicial commissioner, and Amendments 24 and 26, which have no such requirement.

I entirely recognise the force of the principle that the child’s best interests are paramount, and I appreciate the attraction of a clear and simple absolute bar—a red line—by reference only to a person’s age. That is right when dealing with, for example, the age of criminal responsibility, but I am not so sure that it is right here, where we are being asked to balance the protection of the best interests of the child against the need to protect the public against serious crime, such as that perpetrated by county lines where children are, sadly, so much involved. Recognising that a child’s best interests are paramount does not entirely exclude the possibility of looking at all the circumstances and balancing the interests of the child against other interests, as judges have to do from time to time, but of course it has a crucial bearing on how that exercise is carried out.

Looked at from that point of view, I suggest that one can take account of the fact that children do not all have the same circumstances, as the noble Baroness, Lady Kidron, has said. Also, the facts and circumstances may differ widely as to nature of the case and the extent of any risk of physical and psychological harm to the particular child who may be involved—I was interested in the points made by the noble Baroness, Lady McIntosh of Pickering, based on her own experience of the Scottish Bar. The fact is that we are not in possession of all the information that would guide those taking such decisions. I would therefore prefer to leave the door open for the use of children in strictly and most carefully limited circumstances, taking every possible care in full recognition of all the risks, rather than closing it firmly against their use in any case whatever. Had Amendment 12 been qualified in some way, by reference, for example, to “exceptional circumstances”, I would have found it easier to accept, but, of course, as soon as one adds such words, one has to explain what they mean. That is why I am drawn to Amendment 24, to which the noble Lord, Lord Young, has also put his name. It contains that qualification and then defines what such circumstances are. I pay tribute to the clarity with which it is expressed.

Then there is government Amendment 26. It seems to fall short of what is needed, not only because it lacks that qualification about exceptional circumstances but because it lacks the protection which Amendment 24 would give to vulnerable individuals and victims of modern slavery, whom we must also consider. I look forward to listening carefully to what the Minister has to say in support of her amendment, but, for the moment, my preference is for Amendment 24 and for supporting it if the noble Baroness, Lady Kidron, presses it to a vote.

Lastly, I am grateful to the Minister for her letter of today’s date about territorial extent. As she may tell us later on, she informs us in it that the Scottish Government have confirmed that they will recommend to the Scottish Parliament that it should withhold its consent to the Bill. It was for the Scottish Government to take that decision and we must respect it. I am sure that the Minister is right, respecting the Sewel convention, to remove from the Bill the ability to authorise participation in criminal activity for devolved purposes in Scotland. It is not for us to question the decision of the Scottish Parliament and she is right to proceed in that way.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I want to speak briefly to Amendments 12, 13 and 14. In relation to the first, I have recently done some research on military national service, introduced by a Labour Government with the support of a Conservative and Liberal Opposition in 1947 and lasting for just over 10 years. This recruited at age 18 young men to serve in the forces and possibly to face death. There was an element in that Act which allowed 17 and a half year-olds to be recruited, so it was not a carte blanche cut-off at 18; it actually started at 17 and a half.

Against that background, it seems to me—it is quite a long time ago now, but I was one of those who did my national service—today’s young people are certainly more experienced than we were at that age. Also, there is this great move afoot to give 16 year-olds the vote. That is a conundrum, is it not? If that were to happen—Scotland is in the lead on that—are those who get the vote at 16 still children or are they adults? For my money, on Amendment 13, there should be a cut-off age of 18, but subject to particular exceptions.

I come to Amendment 13. Of course, vulnerable individuals should be exempt; we should not go down that route at all. I am not so sure about victims of modern slavery. I suspect that not too many of your Lordships know very much about that world. I certainly do not claim to know a lot about it. Those who will know a lot about it are some of the 17 year-olds who have one way or another got involved with it. Would not it be better and sounder, in certain exceptional circumstances, to have somebody working there who understands the ropes?

Lastly, Amendment 14 talks about a judicial commissioner. I am none too sure, as we discussed the last time we debated this Bill, whether the judiciary is ideally placed for some of these decisions. At this point, I am going with the Minister. I will listen carefully, but let none of us forget that whatever actions are taken are often taken in the interests of society, given the danger from terrorism and all that area of life.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 4:00 pm, 13th January 2021

The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.

Photo of Baroness Bull Baroness Bull Crossbench

I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.

I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.

We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.

Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.

Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.

Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.

The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.

Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.

Photo of Lord Holmes of Richmond Lord Holmes of Richmond Conservative

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.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

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.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 4:15 pm, 13th January 2021

My Lords, I thank the noble Lord, Lord Russell of Liverpool, for the leading role he has played in achieving consensus around Amendment 24. I start by reminding the House of the contribution of the noble Lord, Lord Young of Cookham, in his summary of a similar group of amendments in Committee. He used the analogy of torture, where the ends do not justify the means, in the same way that using children as informants or agents is difficult to justify under any circumstances. Regrettably, banning the use of children as covert human intelligence sources is outside the scope of the Bill. He went on to recall the contribution of the noble Baroness, Lady Chakrabarti, who suggested as an alternative to using children using people over 18 who look younger, as the acting profession often does, particularly when dealing with adult themes.

My noble friend Lady Hamwee pointed out that there is a very fine line between grooming and persuading children to act as covert human intelligence sources. My noble friend Lady Doocey quite rightly pointed out that these children are already vulnerable and exploited, particularly in the case of county lines, without the need for them to be further exploited by the police. We do not send children into war, so why do we send them into potentially more dangerous situations as CHIS, as a number of noble Lords have asked this afternoon? A very experienced police handler of informants told me that, in his experience, even adult CHIS are open to manipulation, let alone children. If you are a child, a non-documented migrant or a victim of human trafficking caught by the police committing crime, you are likely to look for any available way out. You do not need to be blackmailed in such a situation; you are likely to grab at any opportunity, including being tasked to commit crime as a participating informant, a point made by the noble Baronesses, Lady Jones of Moulsecoomb and Lady Young of Hornsey, in Committee. As the noble Baroness, Lady Kidron, said, we are talking about the power imbalance between the police and these vulnerable people, including children.

The Minister’s response in Committee was to cite a High Court judge, Mr Justice Supperstone, who was convinced by the police that it was okay to use children in this way. They appear to have been less successful in convincing the noble Lord, Lord Young of Cookham. When I was seeking promotion to the most senior ranks in the police service, on a six-month course at the national Police Staff College, we were told that we were moving from superintending ranks, where we had to operate within the existing paradigm, to ACPO ranks, where our responsibility was to change the paradigm. Despite the High Court’s decision, we need to change the paradigm. As the noble Lord, Lord Young, says, the court did not consider the active involvement of children as CHIS in crime.

The Government, in response to our deliberations in Committee, have come up with their own alternative. I am as unimpressed as the noble Lord, Lord Young, with this attempt. First, in relation to authorising the use of children, it amends secondary not primary legislation—much easier for the Government to subsequently change and impossible for us to amend. The only change to primary legislation is on post-event reporting. The government amendments, particularly Amendment 26, prohibit the use of children under 16 to commit crimes against their parent or guardian, but not 17 and 18 year-olds: this is already the case, as the noble Baroness, Lady Kidron, said. It creates the position of a “relevant person” who is responsible for the risk assessment and for ensuring that an “appropriate adult” is present if the child is under 16. This risk assessment and the presence of an appropriate adult are already required in legislation. In the case of 17 and 18 year-olds, the appropriate person has only to consider,

“whether an appropriate adult should be present”.

Again, that consideration is already required.

Saying that a child criminal conduct authorisation should be limited to four months instead of 12 is also not a real change. Child CHIS can only be authorised for a maximum of four months and a CCA cannot be granted unless the child has been authorised to be a CHIS, so a review after four months is already inevitable. Overall, I would summarise the proposed alternatives the Government are putting forward as too little, too late.

Amendment 24, proposed by the noble Baroness, Lady Kidron, has been a long time in the planning. I join with the noble Baroness in thanking Stella Creasy MP and Just for Kids Law. It covers vulnerable adults as well as children—the case for which was made strongly by my noble friend Lady Hamwee this afternoon—which the government amendment goes nowhere near. The presence of an appropriate adult would be mandatory for all children and vulnerable adults under this amendment, instead of being compulsory only for under-16s, as in the Government’s alternative. It sets out the very limited circumstances when a child could be used, where the best interests of the child must be paramount. The child or vulnerable adult is not to be put at risk of physical or psychological harm, and the Investigatory Powers Commissioner must be informed. The Minister may say that these restrictions are so limiting that it may result in children and vulnerable adults not being used at all. That is a risk we should be willing to take.

In the absence of Amendments 12 and 13, we support Amendment 24 as the best of the available options, though I agree with the noble Baroness, Lady Massey of Darwen, that it does not involve the independent prior authorisation contained in her Amendment 14. However, as I have just said, it does include informing the Investigatory Powers Commissioner as soon as possible. If anyone thinks that 16 might be an appropriate age for drawing the line, I would urge them to watch the film “County Lines”, directed by Henry Blake. It brings out the horror of the impact of county lines drug dealing on teenagers, including older teenagers, and powerfully makes the case for immediately removing children from these circumstances. Important points were made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, about the lifelong impact of adverse childhood experiences such as involvement in county lines. Regrettably, contrary to the assertion of the right reverend Prelate the Bishop of Durham, Amendment 12 does not prevent using a child as a CHIS; it only prohibits tasking them to commit crime. As my noble friend Lady Hamwee pointed out, some adults are at least as vulnerable as some children.

Amendment 24 is a compromise, but it is comprehensive in that covers both vulnerable adults and children, and we support it strongly for the reasons so clearly expressed by the noble and learned Lord, Lord Hope of Craighead.

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

My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.

Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.

This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.

I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are

“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”

The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can potentially offer a way to extricate themselves from such harm. The decisions to authorise are made only where this is the best option for breaking the cycle of crime and the danger for the individual.

In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.

This means that, for these authorisations in Scotland, public authorities will in the immediate term continue to rely on the existing basis for an authorisation. Were that position to change in the future, it would be for the Scottish Government to bring forward legislation that places this conduct on a clear and consistent statutory basis. The UK Government have worked with operational partners to minimise the immediate operational impact of the legislation not applying UK-wide.

Turning back to the issue of juvenile CHIS, the government amendments make very clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that this must be a primary consideration whenever they are considering whether to authorise a juvenile CHIS to participate in criminal conduct. This reflects the requirements of Article 3 of the UN Convention on the Rights of the Child. It also sets out a statutory requirement for juvenile CHIS to be authorised to participate in criminal conduct only in exceptional circumstances.

In addition to those requirements, we are applying the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requiring the IPC to keep these enhanced safeguards under particular review. These enhanced safeguards include: a prohibition on under-16s reporting on their parent or guardian; requiring an appropriate adult to be present in meetings with CHIS who are under 16, with a requirement to consider this on a case-by-case basis for 16 and 17 year-olds; a requirement for an enhanced risk assessment; and a shorter duration, of four rather than 12 months, for authorisations. Let me also be clear that the notification process, as supported by this House in an earlier vote, will also apply to any deployments of juveniles or, indeed, vulnerable people.

The noble Lord, Lord Young, suggested that the duty of care for juvenile CHIS does not extend beyond the time they are authorised as CHIS. This is simply not true. While an enhanced relationship is in place for the duration of any deployment, the duty of care for that person exists for the lifetime of that individual. There is relevant case law here in Swinney v Chief Constable of Northumbria, to which I refer noble Lords. This also relates to the point made by the noble Lord, Lord Russell, about duty of care beyond the deployment. This package does put in place robust and extensive safeguards for criminal conduct authorisations for juveniles but has been carefully drafted to ensure that there are no unintended consequences which may affect the workability of the power or the safety of the juvenile.

It may sound illogical when I say that sometimes the safest way of extricating the young person from the cycle of crime that they find themselves in is to grant such an authorisation. The duty of care that an authorising officer has to that young person will always be at the forefront of their mind. An authorisation will never be granted for operational benefit alone, but there are some examples where authorising criminal conduct by a juvenile is the right course of action. I will give an example, to demonstrate how authorisations for juvenile CHIS are managed in reality by the police, which is taken from the Investigatory Powers Commissioner’s most recent annual report:

“In one such case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group. The juvenile owed money to the group and approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”

I hope that this example illustrates the great care that is taken by the police and the way in which this power can be used to make a positive difference to the juvenile’s life.

I will also provide an example of where, after considering the well-being of the juvenile, an authorisation was not granted. In this case, police became aware of a vulnerable young person who was in a position to provide considerable intelligence opportunities in an extremist network. Those opportunities were balanced against the welfare of the young person and their long-term well-being, with the welfare of the child being a primary consideration. The local authority social services were consulted, and a child protection plan was instigated. However, in the end, it was not considered proportionate or appropriate to authorise that young person as a CHIS, despite the intelligence benefits that could have been gained. The decision to authorise a juvenile to participate in criminal conduct is not taken lightly, nor without consideration of the well-being of that juvenile.

There are robust safeguards in place and the government amendments further enhance these. We think that we have the balance right, and I note that both the High Court and the IPC, when considering this issue, also agree with this assessment. In response to noble Lords who have speculated about individual examples, I note that this creates significant risks to the children that it seeks to protect. What is important here is that IPCO, which has the role of independently scrutinising all juvenile CHIS authorisations, has not raised concerns that match that speculation.

Turning to vulnerable people and those who have been victims of modern slavery and human trafficking, I first reassure noble Lords that the definition of vulnerable people that is included within the CHIS code of practice is deliberately broad, so as to capture a wide range of circumstances, including victims of modern slavery. I recognise the importance of ensuring that appropriate safeguards are in place for all vulnerable people, regardless of age. That is why there is already a requirement for them to be authorised only in the most exceptional circumstances and at an enhanced authorisation level. For example, an authorisation by the police for someone who may be vulnerable must be granted by an assistant chief constable.

On the point made by the noble Baroness, Lady Bull, an individual, including someone who is considered vulnerable, will never be coerced into becoming a CHIS. However, they may decide that they wish to support the process by which their perpetrators can be brought to justice. If they cannot give informed consent, because of their vulnerability, they will never be authorised as a CHIS in the first place. Placing a prohibition on the authorisation of vulnerable people comes with the same risks as it does for children; we must avoid a situation where these people are drawn further into crime because of the requirements that we put in the Bill. The safeguards contained in the CHIS code of practice are the right ones, and there will be a full consultation on the full safeguards applicable to criminal conduct authorisations, followed by a debate in both Houses, in due course.

I turn to the alternative amendments which deal with this issue. I appreciate and understand the spirit of these amendments; they all seek to protect the welfare of young people. However, we think that the Government’s proposal is the right one in this instance. Amendments 12, 13 and 19 seek to place blanket prohibitions on the use of juveniles or vulnerable groups as CHIS. I cannot stress any more strongly that this would actually put children at greater risk. If a criminal gang has the choice of using a 19 year-old, who may or may not be a CHIS, or a 15 year-old who is definitely not a CHIS, then they are going to involve children in their activities in increasing numbers. Amendment 14 requires prior approval before a juvenile CHIS can be granted a criminal conduct authorisation. This again creates risk in that it takes the authorising role away from the authorising officer who is best placed to consider the welfare of the juvenile involved and the specifics of the authorisation.

Amendment 24—tabled by the noble Baroness, Lady Kidron—has a number of similarities to the government amendments, although our amendment includes additional safeguards for juveniles. It also includes some differences, the workability of which means we cannot support this amendment as drafted.

While public authorities are already under a legal duty to protect the welfare of their CHIS, extending the appropriate adult requirement more widely risks making this power unworkable. It is not clear, for example, who could be approached to act as an appropriate adult for all vulnerable individuals, bearing in mind the duty of care of a public authority to protect the identity of the CHIS and the fact that these individuals may not have a parent, guardian or other person responsible for their welfare. This would mean finding someone outside the public authority to act as an appropriate adult, which could be very difficult in practice—particularly in an urgent situation where any risks need to be managed quickly.

The amendment also defines exceptional circumstances as when

“other methods to gain information have been exhausted”.

This requirement jeopardises the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain information but using the juvenile involved as a CHIS can in fact be the best way to extricate them from the situation and lead to the best outcome for them.

The approach of this amendment also takes the decision-making power away from the individual, who may have taken an independent decision to support the police in helping bring their perpetrators to justice. This could take away an important way for that person to seek redress by preventing them supporting the investigation and prosecution of these criminals.

For those reasons, we cannot support the amendment as drafted. I understand the spirit of it, as the noble Lord, Lord Kennedy, knows, and agree with its intent, but it would have a significant impact on the ability of law enforcement to use this tool to protect the public and support the juveniles, other children and vulnerable individuals who are similarly caught up in this activity.

We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 4:30 pm, 13th January 2021

I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

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?

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 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.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 4:45 pm, 13th January 2021

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.

Photo of Lord Young of Cookham Lord Young of Cookham Conservative

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.

Amendments 13 and 14 not moved.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees

We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.