On 3rd December 2020 the House of Lords considered the Government’s Covert Human Intelligence Sources (Criminal Conduct) Bill 2020 at its Committee Stage. The Bishop of Durham had co-sponsored two amendments aimed at restricting or regulating the use of children as covert agents. The Bishop of Carlisle spoke in his place, in support of the amendments. As is usual practice they were withdrawn after debate and may be returned to at a later stage:
The Lord Bishop of Carlisle: My Lords, I speak in support of Amendment 43, in the names of my right reverend friend the Bishop of Durham, the noble Lord, Lord Young, and the noble Baronesses, Lady Chakrabarti and Lady Bull, and Amendment 60, in the names of the noble Baronesses, Lady Young and Lady Hamwee, and the noble Lord, Lord Kennedy of Southwark. As we have heard, both concern the treatment of children.
We should not for a moment underestimate some of the evils in our society that the Government and the forces of law and order are tasked with confronting. Some of those evils involve the abuse of children and vulnerable people, including, as we know, the scourge of county lines drug gangs, sexual predators and traffickers. It does not take much imagination to see how, as a result of this, there is a periodic temptation to use children as covert assets. We must clearly guard against that temptation; as we have already been reminded, our first duty must be to the care and well-being of children. This applies all the more to children who find themselves in vulnerable and harmful situations, such as those used and abused by criminal gangs.
We are talking here about the exposure of children to dangerous, exploitative and traumatic environments, with significant potential long-term consequences for the children in question. Our responsibility must be to look first to their welfare.
As we have been reminded by the noble Lord, Lord Young, it is argued that covert tactics involving children can be of great value in protecting other victims, but how do we determine an acceptable level of harm to a child, even if there might be a wider benefit? Even if that argument were acceptable, as, again, the noble Lord, Lord Young, observed, how can a child legitimately understand and give informed consent to keeping himself or herself in a harmful situation? It seems to be a very dangerous precedent to suggest that a child can provide informed consent to an activity that may cause long-term harm and trauma.
Therefore, I support both these amendments, which recognise the principle that our first duty is to protect and support children and vulnerable people. As we have been reminded, Amendment 43 would prohibit the use of children as covert agents in criminal activities, while Amendment 60 significantly raises the threshold for the granting of criminal conduct authorisations to guarantee that they could be used in only very extreme circumstances and with much more thorough safeguards than are presently provided.
As others have emphasised, we are all hugely grateful to those who work to protect children and confront criminals who would abuse them. I do not for one moment underestimate the difficulties that they face, but I fear that the Bill, as it stands, does not do enough to provide sufficient safeguards for protecting children from being seen as assets rather than victims who need support. That is why I am glad to support these amendments.
Text of amendments 43 and 60:
Moved by Lord Young of Cookham
Clause 1, page 3, line 2, at end insert—
“( ) A criminal conduct authorisation may not be granted to a covert human intelligence source under the age of 18.”
Member’s explanatory statement: This amendment would prohibit the granting of criminal conduct authorisations to children.
BARONESS YOUNG OF HORNSEY
THE LORD BISHOP OF DURHAM
LORD KENNEDY OF SOUTHWARK
Page 3, line 16, at end insert—
“29C Criminal conduct authorisations: granting to children and vulnerable sources
(1) This section applies when the source is—
(a) under the age of 18,
(b) a vulnerable individual, as defined in subsection (5), or
(c) a victim of modern slavery or trafficking, as defined in subsection (6).
(2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.
(3) Where a criminal conduct authorisation is granted for a source to whom subsection (1) applies, the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who hasresponsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.
(4) In subsection (3) “appropriate adult” means—
(a) the parent or guardian of the source;
(b) any other person who has for the time being assumed responsibility for his or her welfare; or
(c) where no person falling within paragraph (a) or (b) is available and deemed appropriate, any responsible person aged 18 or over who is neither a member of nor employed by any relevant investigating authority.
(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.
(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015 (human trafficking), or exploitation as defined by section 3 of that Act (meaning of exploitation).
(7) The “exceptional circumstances” in subsection (2) are circumstances—
(a) where authorisation of the criminal conduct authorisation is necessary and proportionate considering the welfare of the covert human intelligence source;
b) where the covert human intelligence source is under 18, the relevant investigating authority has determined in its assessment that the criminal conduct authorisation remains compatible with and does not override the best interests of the covert human intelligence source;
(c) where all other methods to gain information have been exhausted; and
(d) where the relevant investigating authority has determined in its assessment that the source to whom subsection (1) applies will not be at risk of any reasonably foreseeable harm (whether physical or psychological)