Instruments drawn to the special attention of the House
Draft Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018
Date laid: 13 June 2018
Parliamentary procedure: affirmative
Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (SI 2018/715)
Date laid: 13 June 2018
Parliamentary procedure: negative
Summary: This Order proposes to extend the period for which the use of a person under 18 years of age as a covert human intelligence source (CHIS) can be authorised from one month to four months. We were concerned, from the material presented in the original Explanatory Memorandum, that the change is founded on the premise of administrative convenience. The associated Code of Practice is very vague on how the welfare obligations indicated are to be fulfilled. We were unclear whether the risks to the CHIS would be different over the extended period and how the welfare of the young person in this situation would be protected. We asked the Home Office for a more detailed explanation. The correspondence, published in an appendix to our Report, is helpful but does not fully satisfy our concerns about the extent to which juveniles are being used for covert surveillance nor whether their welfare is sufficiently taken into account in practice.
This Order is drawn to the special attention of the House on the grounds that it gives rise to issues of policy interest and that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
1.The Order is laid under the Regulation of Investigatory Powers Act 2000 by the Home Office and is accompanied by an Explanatory Memorandum (EM). At the same time, the Home Office has also laid the Draft Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 which brings into force three revised codes of practice relating to aspects of covert surveillance.1 The draft revised Code of Practice on Covert Human Intelligence Sources (“the Code”) includes material on the use of juvenile covert human intelligence sources (CHIS).
2.This Order proposes to extend the period for which a person under 18 years of age can be used as a CHIS from one month to four months. While the Government state that the rationale for the change is that the one month authorisation for juvenile CHIS increases pressure on the CHIS and their handlers to get results swiftly in order to justify the renewal of the authorisation, the predominant tone in the EM originally presented was about the administrative convenience of the authorities concerned.
Administrative convenience?
3.Because of the sparsity of the information given in the EM, we asked for clarification of why the extension to a four month period had been chosen. The Home Office replied:
“Over the past 18 months the Government has been conducting a review with operational partners of the CHIS authorisation legal framework, to consider whether it is working as effectively as it could.
The change which this SI is seeking to make is being made to address an issue that has been raised by law enforcement agency stakeholders, concerning the effect of the current requirement that a juvenile CHIS may only be authorised for a maximum of one month at a time. This time limit means that in practice law enforcement agencies are required to submit an application for renewal of the authorisation within a very short time of its commencement if they wish it to continue. For example, if the requirement to obtain intelligence is ongoing, or if the juvenile CHIS has not been able to complete the tasking within the initial one month period, then an application for renewal has to be made. This is difficult to manage for the law enforcement agency, but also has an unintended consequence of requiring them to try and complete the tasking quickly in order to avoid the need for renewal, or in order to demonstrate the value of the deployment if renewal is likely to be required.
This pressure to obtain results could be unhelpful to the juvenile CHIS and also to the law enforcement agency, in so far as it can make the deployment more difficult to manage given the imperative to ensure the safety and welfare of the young person, and could lead to the investigation progressing in a way that does not achieve the best long term result. In some circumstances this requirement can also act as a deterrent with law enforcement avoiding the use of juvenile CHIS where immediate results may not be obtained even if a longer term, carefully managed deployment could provide significant operational dividend.”
4.To offset the potential effects of the increased duration, the Order proposes to require the authorisation to be reviewed monthly to ensure that a suitable level of senior supervision of the deployment is maintained.2 The Home Office states that:
“the monthly reviews will provide the same level of oversight of the welfare and safety of the young person as a renewal, but without the additional burden of providing an updated case for authorisation. As with all investigatory powers the conduct must be cancelled if it is no longer necessary and proportionate so this change will not lead to conduct extending longer than necessary. As an additional safeguard we are also strengthening the requirement for juvenile CHIS under 16 to be accompanied to meetings with the handlers in the public authority by a parent or other appropriate adult, to ensure that the appropriate adult will be someone who is suitably qualified for that role. We are also maintaining the existing position that a juvenile CHIS may not be deployed to obtain evidence against their parent or guardian.”
5.This impression of operational focus is underpinned by the list of interested groups consulted. The Home Office explained that their consultation was “with a range of practitioners through their membership of the Home Office CHIS Policy Working Group. This included representatives of the police, intelligence agencies, National Crime Agency, Crown Prosecution Service, College of Policing and the National Policing leads for CHIS and undercover policing.” This list does not mention consultation with organisations that might be expected to offer views on the mental and physical welfare of juveniles.
Correspondence from the Minister
6.The original EM did not give any context on how such sources would be used nor the numbers involved. Nor was sufficient reason given for choosing an extension to four months rather than two or three. It gave no information on what checks might be made on the welfare of the young person not only during the period of surveillance but also in the longer term. In consequence, the Committee wrote to the relevant Home Office Minister, Ben Wallace MP, seeking further clarification. The correspondence is included at Appendix 1.
7.The Minister’s reply gives some examples of how such a juvenile CHIS might be used, citing terrorism, gang violence and drug offences as well as child sexual exploitation. These are serious, violent crimes and we have grave concerns about any child being exposed to such an environment. He was unable however to give any information on the number of juveniles so authorised, a fact we find surprising given the ongoing review he mentions.
8.Although paragraph 5.33 of the Code states that “where necessary and practicable, the safety and welfare of the CHIS should continue to be taken into account after the authorisation has been cancelled”, the Home Office’s inability to provide numbers prompts us to wonder how closely this “very small” number of authorisations have been examined in order to understand the effects on the long-term safety and mental welfare of the juvenile CHIS used.
9.Paragraph 4.3 of the Code requires that “any deployment of a juvenile CHIS should be subject to the enhanced risk assessment process set out in the statutory instrument “[Regulation of Investigatory Powers (Juveniles) (Amendment) Order 20003]”. There are, however, no instructions on what that assessment should include. Article 5 simply requires that the risks of physical injury and psychological distress to the young person should be evaluated. We therefore question how an adequate and consistent approach to such assessments is achieved across the many police forces in England, Wales and Northern Ireland to which the Order applies.
10.We also note that in the list of things to be taken into account when considering whether to authorise an application for the use of a CHIS, the risk assessment is not specifically mentioned. Among a number of operational and legal grounds for seeking authorisation, the list in paragraph 5.11 of the Code requires a description of what the CHIS conduct will be and why the authorisation is considered proportionate to what it seeks to achieve but no specific mention is made of the welfare of an individual source. Although article 5 of the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2000 specifically requires that for CHIS under 18 years of age “the person granting or renewing the authorisation has considered the risk assessment and has satisfied himself that any risks identified in it are justified and, if they are, that they have been properly explained to and understood by the source”, that requirement is not explicitly included in the list of items set out in paragraph 5.11 of the Code. This again prompts us to wonder how a consistent and legally compliant approach to such authorisations is to be achieved across many police forces, with varying levels of experience in covert surveillance.
Conclusion
11.We are concerned that enabling a young person to participate in covert activity associated with serious crime for an extended period of time may increase the risks to their mental and physical welfare. While the EM alludes to a range of safeguards in place to monitor the young person’s welfare they are not explained in any detail and no view is given as to whether existing checks need to be enhanced as a result of such an extension.
12.The more we looked into the various documents cited, the more we wondered how effective they would be at ensuring adequate assessments were made to ensure that the CHIS is properly supported both during and after the event. We are unclear how the officers designated as handlers or authorising officers will know how to assess the mental risks to juveniles. Nor can we see how a consistent approach to such evaluations across different police forces is to be achieved. There may be further instructions available to these officers but this information is also omitted from the original EM.
13.The original EM refers vaguely to requirements but does not explain how they will be fulfilled in practice. The EM also fails to explain how the authorising officer is supposed to weigh the intelligence benefits against the potential negative impact on the juvenile sources. The correspondence from the Minister is helpful, but does not fully satisfy our concerns about the extent to which juveniles are being used for covert surveillance or how their welfare is taken into account, and how extending their period of operation may affect them. The House may wish to seek reassurance from the Minister.
1 Home Office, Draft Revised Codes of Practice on Covert Human Intelligence Sources, Covert Surveillance and Property Interferences and Investigation of Protected Electronic Information (all published June 2018).
2 See also paragraphs 4.2–4.3 of the revised code of practice: Home Office, Covert Human Intelligence Sources: Draft Revised Code of Practice https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/716459/CCS207_CCS0518665932-1_CHIS_Draft_Revised_CoP_Web_Accessible.pdf [accessed 10 July 2018].
3 Regulation of Investigatory Powers (Juveniles) Order 2000 (SI 2000/2793), article 5.