Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Young of Hornsey Excerpts

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

[Baroness Young of Hornsey (CB) [V]]

My Lords, I am going to try not to repeat comments made by colleagues already. However, I feel it is important to put on the record some of my huge misgivings about what this Bill does in relation to children and vulnerable individuals. I wholeheartedly support the arguments put forward in other amendments in this group, especially when we are talking about children—whether we call them “children” or “juveniles” is semantics—and vulnerable adults as CHIS. I hope we can collaborate on a single amendment on Report, should that be necessary, because many of us feel we must pursue this until we cannot do so any longer.

I have been slightly conflicted about where to put my energy in this Bill: like other noble Lords who have already spoken, I fundamentally disagree with the practice of using young people and vulnerable individuals as covert intelligence sources at all, let alone encouraging them to commit criminal acts. It raises so many questions, and one that has been bugging me for a little while, since I read about this issue, is: who in this Chamber would be prepared to sacrifice—that is how I see it—their own, or a friend’s, 15, 16 or 17 year-old to become a CHIS and commit a crime in that role? When I hear people describe using children or vulnerable people as CHIS as unpleasant or uncomfortable, I think that that does not do justice to the seriousness of this issue.

All of us here accept that there are legitimate reasons for undercover work to disrupt criminality of all kinds and use a variety of strategies to secure credibility for agents working in the field. The question is, then: what are the limitations and checks and balances that are necessary to maintain confidence in the institutions undertaking such activities in our democracy and on our behalf? The draft code of conduct issued by the Government goes some way towards alleviating fears regarding the use of children and vulnerable adults, but it does not go far enough in my view or the view of most of those who have spoken in this group this evening. Amendment 60 seeks to address some of the gaps in the guidance with regard to the deployment of children, juveniles and vulnerable individuals and to ensure that these safeguards are enshrined in legislation.

Amendment 60 is straightforward. Proposed new subsection (1) defines its parameters by stating that children, vulnerable individuals and victims of modern slavery and human trafficking are the subject of this amendment. These individuals are defined in proposed new subsections (5) and (6). In essence, this amendment is concerned with the welfare of those with limited capacity to make informed choices—which noble Lords mentioned earlier—without adequate support and resources to protect themselves. I draw your Lordships’ attention to issues raised by colleagues working with learning disabled adults who have seen at first hand how vulnerable adults can be groomed and lured into being a cuckoo. Some noble Lords may not be familiar with that term but, in essence, it means an innocent person who is groomed or coerced into harbouring drugs, criminals or whatever.

This is a particular issue for people with learning disabilities because it is relatively easy to persuade them by fair means or foul to become a cuckoo—to use their spaces to hide criminal goods. The same can be said of looked-after or care-experienced children who are known to have left care and been given accommodation. These are also spaces where criminal gangs steadily work on that young person and inveigle themselves into to use for their criminal activities. The problem is that their vulnerability facilitates exploitation in both those groups. The idea, therefore, that we might endorse state or public bodies to enable vulnerable adults in hazardous situations or care-experienced care leavers to commit unspecified crimes with immunity should be totally unacceptable.

Those who have been subjected to trafficking or other forms of modern slavery are similarly vulnerable to coercion of various kinds, with threats made not only to them but to their families. On that issue, I should like some clarification on the Government’s draft code of practice. On page 18, reference is made to “collateral intrusion”—one of those terms—which concerns the potential harm that may be done to individuals who may be related to the culpable person being spied on. My understanding of that section is that the harm posed to the relatives or the family and private life of the CHIS is not under consideration there. I may have completely misread or misunderstood that and hope that the Minister can clarify it for me. If it is seen as an issue, and the authorities have to take account of the CHIS’s family welfare, perhaps I have missed it, and I apologise. However, if not, and the private life of the families of the juvenile or vulnerable adult is not a factor to be considered when assessing the appropriateness of deploying the CHIS and enabling their criminal activity, I should like to know why. This is particularly important for the welfare of the families of vulnerable individuals and young people because they may not have a complete understanding of the dangerous situation in which they are placing others, as well as themselves. It comes back to the issue of what is an informed choice.

The point of proposed new subsection (3) in my amendment is that an appropriate adult, if a parent or guardian is not available to take on that role, must be present and be independent of any of the authorities recruiting a CHIS. Whatever the age of the CHIS, whether 15, 16, or 17, it should be mandatory, not discretionary, that an appropriate adult is present. The reason is that, given that there must be exceptional circumstances when it is determined that a CHIS is the only way in which to deal with a specific situation—we explain what such circumstances are in our amendment—the young person or vulnerable individual must be able to make an informed choice on engaging with the authorities in this way, and protected as far as possible from making a decision that may cause them significant harm. If the situation is acceptable, it is all the more obvious that an independent appropriate adult must be present for anyone under the age of 18 and other vulnerable individuals. Do we really think that these young people or vulnerable adults will be able to keep what they have done to themselves, when in some circumstances they may have committed a crime at the instruction of an agent of the state? That would place not only them but their families and relations in jeopardy.

As my noble friend Lady Bull pointed out, anyone who knows young people of that age—15, 16 or 17 —will know that levels of maturity vary and that an understanding that actions taken today may impact negatively on their futures, to say the least, can be hard to grasp at that age. Why not make it mandatory for an appropriate adult to be present for all those described in proposed new subsection (1)? The very fact that they are in the predicament of involvement with a criminal gang indicates that some bad choices have already been made. Many of these young people will have been in care, as has been pointed out, excluded from school or charged with a crime; they will be using drugs. Many people are working really hard to turn the lives of these juveniles around, to set them on the right path and to point out role models who can help them make a positive contribution to society.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Young of Hornsey Excerpts

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

[Baroness Young of Hornsey (CB) [V]]

My Lords, I, too, welcome--albeit remotely—the noble and learned Lord, Lord Stewart of Dirleton, and wish him luck in his new role, and I also welcome the noble Lord, Lord McLoughlin.

I am sure that many people accept that the police and security services need to deploy undercover operatives to disrupt terrorist and criminal activity, and we recognise that difficult decisions have to be made regarding operational effectiveness. There is no need for me to elaborate on the observations made by the noble Lord, Lord Hain, except to say that the subject matter and nature of the Undercover Policing Inquiry is relevant not least because it reminds us of some of the critical issues raised by the scope, character and potential for harm of inappropriate and inadequately regulated undercover operations.

In the Bill, one area that causes me and many other noble Lords the most concern is the deployment of those under 18 years old—children of 15, 16 or 17—with no stated lower age limit. As the Minister will be aware from the Young review, which I chaired, from the Lammy review, led by the honourable Member for Tottenham, and from all the reports that preceded them, young black men are overrepresented in the criminal justice system and experience disproportionately poor outcomes throughout the system. I fear that racial disparities elsewhere in the CJS will be amplified in respect of the use of covert operatives. Will the noble Baroness the Minister, when she comes to respond to this debate, inform the House of the Home Office’s assessment of the equality impact reviews of the proposed legislation?

As has been pointed out by the noble Lord, Lord Young, and others, drugs shifted around the country via county lines wreak havoc and violence in our communities. Younger and younger children are recruited and of course we long for effective strategies to mitigate the impact of these activities. Gangs groom young children into becoming drug mules, terrifying and traumatising them in the process, turning often vulnerable young people into criminals. Determined youth and social workers do their best, but it is incredibly hard and getting increasingly so to help out here. It appears that the juveniles recruited as intelligence sources are most often 16 or 17, but we have been informed of at least one 15 year-old being used in this way. I find this shocking. Will the Minister accept that not to have a lower age limit for recruiting children carries substantial risks to those already in harmful situations? In any other circumstances, we would be taking steps to protect such children and remove them from such harms.

My own view is similar to that of the right reverend Prelate the Bishop of Durham and of my noble friend Lady Bull: under-18s should never be used as undercover operatives. I find the whole idea absolutely repugnant rather than uncomfortable. I cannot see how it is legitimate to recruit juveniles as informers and spies in dangerous, violent situations but not to allow 16 year-olds to vote.

Ideally, CCAs for children should be prohibited altogether to limit the risk of serious violations of the rights of the child. At the very least, the Bill should contain an explanation of the exceptional circumstances where it would be appropriate for a child to be given a CCA and of how their welfare would be protected. Appropriate adults should be mandatory, rather than discretionary, for 16 year-olds and 17 year-olds, and a lower age limit should be set.

I have many concerns similar to those of many colleagues who spoke earlier in this debate. Two further concerns are that of immunity from prosecution for those perpetrating criminal acts and the lack of explicit limits on the nature of any criminal act committed; those two are linked, I think. As others have noted, the USA, Canada and Australia place limits on the acts that agents can commit.

The case studies circulated by the Minister yesterday have been referred to. It is interesting that they fall into two categories: hypothetical and real-life. The hypothetical ones are all about the public bodies and do not reveal the extent to which CHIS work with police and are trained. The real-life cases seem straightforward, but can the Minister tell us how the results of those significant prosecutions would be undermined in some way by current legislation and how they would be improved by this piece of legislation? I look forward to debates in Committee.