My Lords, I start with the words of the noble Lord, Lord Kennedy, and absolutely confirm that I fully understand what all noble Lords have been talking about this evening. Of course, I will continue to work with the House, as I have done to date, in discussing what is, for me, the most difficult part of the Bill. The noble Lord, Lord Paddick, asked me: would I like to be a CHIS? No: I would be utterly terrified. Could I see my children being deployed in such activity? It would be incredibly difficult for me.
We need to put ourselves in the shoes of those children, who, as every noble Lord has said, are fairly vulnerable people in the sense that they might have been involved in, or their home life might be the site of, criminal activity. This is a very difficult area indeed. I thank the noble Lords, Lord Russell, Lord Paddick and Lord Kennedy, and my noble friend Lord Young of Cookham—and any noble Lords who are behind me—who have taken the time to come and speak to me about this aspect of the Bill.
The noble Lord, Lord Russell, put to me the suggestion from the noble Lord, Lord Anderson, about sessions in private. We are thinking about the best way to ensure that people have some of the information they need, although noble Lords will understand that some of that is sensitive to the point that it cannot be given out. I hope that noble Lords will appreciate that I have taken the time to have a one-to-one session with any noble Lord who requested it, on any aspect of the Bill. That said, these issues are very difficult, and I totally understand the concerns that have been raised. Nobody likes to think of children or young people being involved in these horrible areas.
Noble Lords may recall that the issue of juvenile CHIS, including whether they should be authorised at all, was discussed extensively in Parliament in 2018. The noble Lord, Lord Russell, and the noble Baroness, Lady Young, asked me why there was no child impact assessment of the Bill. As a result of concerns being raised about the use of juvenile CHIS, the IPC himself launched a review of all public authorities that have the power to authorise CHIS, to ensure that there was a comprehensive record of how often these powers were used in relation to juveniles. The conclusions of the review were reported in March 2019 to the Joint Committee on Human Rights. I have discussed them before, including the numbers, on the Floor of this House.
On the basis of these detailed reviews, 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 public authority’s duty of care to the child are key considerations in the authorisation process. He also noted that public authorities are reticent to authorise juveniles as CHIS unless the criminality and the risk of harm to individuals and communities that the authorisation is seeking to prevent is of a high order and cannot be resolved in less intrusive ways. The noble Baroness, Lady Young of Hornsey, put that challenge to me.
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 were only made where this is the best option for breaking the cycle of crime and the danger for the individual, much as that might sound contradictory.
As well as the IPC investigation, the High Court considered the issue of juvenile CHIS last year. Mr Justice Supperstone 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.”
I hope that that goes some way to reassuring noble Lords that the decision to authorise a young person to act as a CHIS, or participate in criminality, is never taken lightly.
I will now set out the additional safeguards that apply to the authorisation of juveniles as CHIS, and which will equally apply when criminal conduct is being authorised. These include authorisation at a more senior level, a shorter duration for authorisations—four months, rather than 12 for adult CHIS—with monthly reviews, and a requirement for an enhanced risk assessment. There must also be an appropriate adult present at meetings between the public authority and the CHIS for those under 16 years of age. To answer another question, appropriate adults are always independent of the police or other investigating authorities. This must be considered on a case-by-case basis for 16 to 17 year-olds.
These safeguards are contained within the Regulation of Investigatory Powers (Juveniles) Order and the updated CHIS code of practice, where the safeguards for juveniles have been further strengthened. The revisions to the code will be subject to a full consultation before they are finalised and will have legal force.
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While public authorities will very rarely use young people as CHIS, we must recognise that some juveniles are involved in serious crimes, both as perpetrators and as victims. Consequently, 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 authorised as a CHIS 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 and terrorist groups 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. In seeking to protect young people, we do not want inadvertently to place them at greater risk of being exploited by criminal gangs. We therefore cannot support amendments which place a blanket prohibition on authorising juveniles to participate in criminal conduct.
With regard to vulnerable groups, equally, a vulnerable person will never be coerced into becoming a CHIS or undertaking criminal activity. However, there may be occasions when they take an informed and independent decision to assist a public authority that is seeking to help them, and others in a similar position, by bringing the gangs that exploit them to justice. The updated CHIS code of practice makes it clear that such individuals should be authorised to act as CHIS only in the most exceptional circumstances, and there are further safeguards, including higher authorisation levels. Full risk assessments are also carried out and maintained throughout the tasking.
Amendment 51 in the name of the noble Baroness, Lady Massey of Darwen, would make prior judicial approval a requirement for all criminal conduct authorisations that related to CHIS under the age of 18. The amendment encounters the same practical issues as those that we have already discussed more broadly on prior judicial approval: namely, that it takes the decision to authorise the criminal conduct of a juvenile CHIS away from the authorising officer, which may result in greater risks to the young person. Authorising officers are highly trained and must consider the requirements set out in the code of practice, including those additional safeguards for juvenile CHIS, as part of their decision-making role. The authorising officer will know the juvenile CHIS and their circumstances in precise detail and will have a duty of care to ensure that the well-being and safety of the CHIS is a primary consideration of the authorisation decision. Thus, we think that the authorising officer is the best person to take those decisions. Of course, the IPC maintains an important role in providing independent oversight for authorisations of juvenile CHIS, as he does more broadly for all CCAs.
Amendment 48 from my noble friend Lady McIntosh would ensure that where criminal conduct authorisations were granted in relation to juvenile CHIS, the provisions of the United Nations Convention on the Rights of the Child applied. Clearly, the provisions of the convention use language intended to apply to a range of legal systems worldwide. The detailed CHIS code of practice, together with the protections contained in legislation, contain safeguards to ensure that the juvenile’s interests are protected. The code states explicitly that the need to safeguard and promote the best interests of the juvenile is a primary consideration in all operations involving juvenile CHIS, reflecting the requirement in Article 3 of the United Nations Convention on the Rights of the Child.
Amendment 60 in the name of the noble Baroness, Lady Young of Hornsey, places restrictions on the authorisation of juveniles and vulnerable persons, but without going as far as to restrict the use of these groups in their entirety. This was the group that the noble Lord, Lord Kennedy, referred to. I have already explained in detail the safeguards that are in place for vulnerable and juvenile CHIS. We think that these safeguards strike the right balance but recognise that, on rare occasions, it may be necessary to authorise participation in criminal conduct, to prevent further criminality or to protect the identity of a young person who may be deployed as a CHIS.
Turning to the specifics of the amendment, it seeks to define vulnerable groups. The updated code of practice, which has legal force, already provides a definition of “vulnerable individuals”, so we have not placed it in the Bill. The amendment also requires an appropriate adult to be present at all meetings between a handler and a CHIS up to the age of 18; obviously, this is already the case for those up to the age of 16. For 16 and 17 year-olds, it must be considered on a case-by-case basis; if an appropriate adult is not present, the IPC can consider the reasoning set out as part of his oversight function.
I have said before that the law recognises that parental responsibility diminishes as the child gets older, but I assure noble Lords that the vulnerability of all young people aged under 18 is taken very seriously. These assessments are made on a case-by-case basis and focus specifically on the young person’s safety and welfare. Public authorities may draw on the expertise of those with specific training and experience in fields such as mental health and social care.
Turning to the requirement to define “exceptional circumstances”, we want to avoid highlighting the circumstances under which young and vulnerable people are authorised to undertake criminality when acting as a CHIS, as this would hand to our adversaries a greater understanding of how public authorities operate. In addition, the specific restrictions in this amendment are very restrictive. County lines are an example of where it may be necessary to use this tactic but where it might not be covered by these restrictions. However, the code of practice, which I reiterate has legal force, is clear that juveniles and those who are vulnerable are to be used only in exceptional circumstances. Indeed, between 2015 and 2018, there were only 17 instances where law enforcement bodies deployed juvenile CHIS. Their participation in criminal conduct is rarer still.
I understand noble Lords’ concerns and look forward to further discussions with them to consider before Report whether there are ways to provide, in the words of the noble Lord, Lord Kennedy, additional reassurance and safeguards, as well as provide assurance about some of the safeguards that are in place.