Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-13
Topic: Mixed Topics
Doreen Massey (Labour, Centre-left): 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.