My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.
Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.
This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.
I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also 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.”
The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. 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 are made only where this is the best option for breaking the cycle of crime and the danger for the individual.
In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.
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This means that, for these authorisations in Scotland, public authorities will in the immediate term continue to rely on the existing basis for an authorisation. Were that position to change in the future, it would be for the Scottish Government to bring forward legislation that places this conduct on a clear and consistent statutory basis. The UK Government have worked with operational partners to minimise the immediate operational impact of the legislation not applying UK-wide.
Turning back to the issue of juvenile CHIS, the government amendments make very clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that this must be a primary consideration whenever they are considering whether to authorise a juvenile CHIS to participate in criminal conduct. This reflects the requirements of Article 3 of the UN Convention on the Rights of the Child. It also sets out a statutory requirement for juvenile CHIS to be authorised to participate in criminal conduct only in exceptional circumstances.
In addition to those requirements, we are applying the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requiring the IPC to keep these enhanced safeguards under particular review. These enhanced safeguards include: a prohibition on under-16s reporting on their parent or guardian; requiring an appropriate adult to be present in meetings with CHIS who are under 16, with a requirement to consider this on a case-by-case basis for 16 and 17 year-olds; a requirement for an enhanced risk assessment; and a shorter duration, of four rather than 12 months, for authorisations. Let me also be clear that the notification
process, as supported by this House in an earlier vote, will also apply to any deployments of juveniles or, indeed, vulnerable people.
The noble Lord, Lord Young, suggested that the duty of care for juvenile CHIS does not extend beyond the time they are authorised as CHIS. This is simply not true. While an enhanced relationship is in place for the duration of any deployment, the duty of care for that person exists for the lifetime of that individual. There is relevant case law here in Swinney v Chief Constable of Northumbria, to which I refer noble Lords. This also relates to the point made by the noble Lord, Lord Russell, about duty of care beyond the deployment. This package does put in place robust and extensive safeguards for criminal conduct authorisations for juveniles but has been carefully drafted to ensure that there are no unintended consequences which may affect the workability of the power or the safety of the juvenile.
It may sound illogical when I say that sometimes the safest way of extricating the young person from the cycle of crime that they find themselves in is to grant such an authorisation. The duty of care that an authorising officer has to that young person will always be at the forefront of their mind. An authorisation will never be granted for operational benefit alone, but there are some examples where authorising criminal conduct by a juvenile is the right course of action. I will give an example, to demonstrate how authorisations for juvenile CHIS are managed in reality by the police, which is taken from the Investigatory Powers Commissioner’s most recent annual report:
“In one such case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group. The juvenile owed money to the group and approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”
I hope that this example illustrates the great care that is taken by the police and the way in which this power can be used to make a positive difference to the juvenile’s life.
I will also provide an example of where, after considering the well-being of the juvenile, an authorisation was not granted. In this case, police became aware of a vulnerable young person who was in a position to provide considerable intelligence opportunities in an extremist network. Those opportunities were balanced against the welfare of the young person and their long-term well-being, with the welfare of the child being a primary consideration. The local authority social services were consulted, and a child protection plan was instigated. However, in the end, it was not considered proportionate or appropriate to authorise that young person as a CHIS, despite the intelligence benefits that could have been gained. The decision to authorise a juvenile to participate in criminal conduct is not taken lightly, nor without consideration of the well-being of that juvenile.
There are robust safeguards in place and the government amendments further enhance these. We think that we have the balance right, and I note that both the
High Court and the IPC, when considering this issue, also agree with this assessment. In response to noble Lords who have speculated about individual examples, I note that this creates significant risks to the children that it seeks to protect. What is important here is that IPCO, which has the role of independently scrutinising all juvenile CHIS authorisations, has not raised concerns that match that speculation.
Turning to vulnerable people and those who have been victims of modern slavery and human trafficking, I first reassure noble Lords that the definition of vulnerable people that is included within the CHIS code of practice is deliberately broad, so as to capture a wide range of circumstances, including victims of modern slavery. I recognise the importance of ensuring that appropriate safeguards are in place for all vulnerable people, regardless of age. That is why there is already a requirement for them to be authorised only in the most exceptional circumstances and at an enhanced authorisation level. For example, an authorisation by the police for someone who may be vulnerable must be granted by an assistant chief constable.
On the point made by the noble Baroness, Lady Bull, an individual, including someone who is considered vulnerable, will never be coerced into becoming a CHIS. However, they may decide that they wish to support the process by which their perpetrators can be brought to justice. If they cannot give informed consent, because of their vulnerability, they will never be authorised as a CHIS in the first place. Placing a prohibition on the authorisation of vulnerable people comes with the same risks as it does for children; we must avoid a situation where these people are drawn further into crime because of the requirements that we put in the Bill. The safeguards contained in the CHIS code of practice are the right ones, and there will be a full consultation on the full safeguards applicable to criminal conduct authorisations, followed by a debate in both Houses, in due course.
I turn to the alternative amendments which deal with this issue. I appreciate and understand the spirit of these amendments; they all seek to protect the welfare of young people. However, we think that the Government’s proposal is the right one in this instance. Amendments 12, 13 and 19 seek to place blanket prohibitions on the use of juveniles or vulnerable groups as CHIS. I cannot stress any more strongly that this would actually put children at greater risk. If a criminal gang has the choice of using a 19 year-old, who may or may not be a CHIS, or a 15 year-old who is definitely not a CHIS, then they are going to involve children in their activities in increasing numbers. Amendment 14 requires prior approval before a juvenile CHIS can be granted a criminal conduct authorisation. This again creates risk in that it takes the authorising role away from the authorising officer who is best placed to consider the welfare of the juvenile involved and the specifics of the authorisation.
Amendment 24—tabled by the noble Baroness, Lady Kidron—has a number of similarities to the government amendments, although our amendment includes additional safeguards for juveniles. It also includes some differences, the workability of which means we cannot support this amendment as drafted.
While public authorities are already under a legal duty to protect the welfare of their CHIS, extending the appropriate adult requirement more widely risks making this power unworkable. It is not clear, for example, who could be approached to act as an appropriate adult for all vulnerable individuals, bearing in mind the duty of care of a public authority to protect the identity of the CHIS and the fact that these individuals may not have a parent, guardian or other person responsible for their welfare. This would mean finding someone outside the public authority to act as an appropriate adult, which could be very difficult in practice—particularly in an urgent situation where any risks need to be managed quickly.
The amendment also defines exceptional circumstances as when
“other methods to gain information have been exhausted”.
This requirement jeopardises the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain information but using the juvenile involved as a CHIS can in fact be the best way to extricate them from the situation and lead to the best outcome for them.
The approach of this amendment also takes the decision-making power away from the individual, who may have taken an independent decision to support the police in helping bring their perpetrators to justice. This could take away an important way for that person to seek redress by preventing them supporting the investigation and prosecution of these criminals.
For those reasons, we cannot support the amendment as drafted. I understand the spirit of it, as the noble Lord, Lord Kennedy, knows, and agree with its intent, but it would have a significant impact on the ability of law enforcement to use this tool to protect the public and support the juveniles, other children and vulnerable individuals who are similarly caught up in this activity.
We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.