Appendix 1: Correspondence on Draft Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 and Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018
Letter from Lord Trefgarne, Chairman of the Secondary Legislation Scrutiny Committee, to the Rt Hon. Ben Wallace MP, Minister of State for Security and Economic Crime at the Home Office
I am writing as Chairman of the Secondary Legislation Scrutiny Committee which considered this Order at its most recent meeting.
The Order proposes to extend the period from one month to four months for which a person under 18 years of age can be used as a covert human intelligence source (CHIS). We are concerned, from the sparse information given in the Explanatory Memorandum (EM), that the change may be founded on administrative convenience as it does not make clear how the welfare of the young person in this situation will be taken into account.
The EM gives no context about how such surveillance “sources” might be used and what checks might be made on their welfare not only during the period of surveillance but also in the longer term.
The Draft Revised Code of Practice on Covert Human Intelligence Sources, being updated under an affirmative instrument also on this week’s agenda, coincidentally provides more detail about the process of commissioning and using covert sources. Although the Code mentions monthly reviews and risk assessments, it is not clear whether the focus of those reviews is operational or the welfare of the young person. It may be that this is set out in pre-existing guidance but in that case the EM to SI 2018/715 would benefit from providing a more complete picture of those protections.
This impression of operational focus is underpinned by the list of interested groups consulted. Responses to the supplementary questions we asked stated that the consultation was limited to “the operational community”, “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 any consultation with organisations or professionals that might be expected to offer views on the mental and physical welfare of juveniles. Please could you explain why not and whether such views have been included in some other way?
We would also be grateful if you would explain the rationale for differentiating the treatment of the individuals recruited according to their age. We note that this Order requires those sources under 16 to have an appropriate adult “qualified to represent the interests of the source” present at any meetings with their handler. How are the interests of 16-18 year olds, to be protected?
We are concerned that enabling a young person to participate in covert activity for an extended period of time may expose them to increased risks to their mental and physical welfare. While there may be a range of safeguards in place to monitor the young person’s welfare they are not explained in the EM and no view is given as to whether existing checks need to be enhanced to deal with the different risks that might affect a young person acting in covert surveillance for an extended period of time. Please could you provide further clarification?
I cannot hide from you the Committee’s considerable anxiety concerning the principle of employing young people–sometimes very young people–in this way. I or another member of the Committee may well decide to raise this matter in the House.
27 June 2018
Letter from Ben Wallace MP, to Lord Trefgarne
Thank you for your letter seeking further background on the changes made by the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (S.I.2018/715).
Covert human intelligence source (CHIS) have a vital role to play in investigations by public authorities and can provide crucial evidence that cannot be obtained by any other means.
Given that young people are increasingly involved, both as perpetrators and victims, in serious crimes including terrorism, gang violence, county lines drugs offences and child sexual exploitation, there is increasing scope for juvenile CHIS to assist in both preventing and prosecuting such offences. They may have unique access to information about other young people who are involved in or victims of such offences. For example, it can be difficult to gather intelligence on gangs without penetrating their membership through the use of juvenile CHIS. As well as provide intelligence dividend in relation to a specific gang, juvenile CHIS can give investigators a broader insight into, for example, how young people in gangs are communicating with each other.
Much as investigators would wish to avoid the use of young people in such a role, it is possible that a carefully managed deployment of a young person could contribute to detecting crime and preventing offending. In particular their use could be of importance in preventing offending against or safeguarding other young people, for example, in county lines drugs gangs often young or vulnerable people are coerced into offending and being able to disrupt such activity could protect large numbers of young people.
Although statistics on the number of CHIS authorisations (published annually by the Investigatory Powers Commissioner—and previously the Surveillance Commissioner) do not distinguish between different age groups, we know from discussions with investigators that juvenile CHIS are authorised in very small numbers.
Over the past 18 months, at my instigation, 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 Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (S.I. 2018/715) is part of a wider package of changes being made to the covert investigatory powers regime.
As a result, the changes being made to the Juveniles Order should be considered alongside the relevant draft CHIS Code of Practice which has been laid before Parliament alongside the Regulation of Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018. The Code is being updated to, among other things, take account of the changes we are proposing to the safeguards around juvenile CHIS. It is no coincidence that these orders were published together.
I acknowledge that the explanatory memorandum laid before Parliament could have gone further to set out the background to the policy, the safeguards that are in place around Juvenile CHIS and how this change relates to other changes that we are bringing forward. Accordingly I intend to lay a revised explanatory memorandum to accompany this Order. I attach an updated draft which, subject to any further response from yourselves, I intend to lay as soon as possible.
We think these amendments will improve the operational effectiveness of the regime while also strengthening of the protections for young people in this area. I hope this letter and the revised explanatory Memorandum have provided you the reassurance you have sought on the use of juveniles as CHIS but I would be happy to answer any further questions that you or your fellow committee members may have.
3 July 2018