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.
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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.