Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Lord Paddick Excerpts

Tuesday 16th October 2018 Lords Chamber

Moved by

[Lord Paddick]

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

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

[Lord Paddick (LD)]

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

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

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

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

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

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

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.


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

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

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

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

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

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

[Lord Haskel (Lab)]

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

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

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

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

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

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

--- Later in debate ---

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

[Lord Paddick]

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

[Baroness Williams of Trafford]

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

[Lord Paddick]

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

[Baroness Williams of Trafford]

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

[Lord Paddick]

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

[Baroness Williams of Trafford]

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

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

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

--- Later in debate ---

[Baroness Williams of Trafford]

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

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

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

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

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

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

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

[Lord Paddick]

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

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

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

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

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

Motion withdrawn.