On 12 July 2018, the House of Lords Secondary Legislation Select Committee (the Select Committee) published a report on proposed Investigatory Powers Orders laid under the Regulation of Investigatory Powers Act 2000 (RIPA 2000). One of the proposed Orders included the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (the Order) and publication of the Select Committee’s report caused some controversy and attention-grabbing headlines. This post explores these from a legal perspective.
The Select Committee was established in 2003 to, amongst other things, scrutinise statutory and other instruments that emanated out of primary legislation. This scrutiny is an important, though limited, safeguard in an era where the use of so-called Henry VIII clauses has proliferated. Indeed, in a speech to King’s College London on 12 April 2016, entitled, ‘Ceding Power to the Executive; the Resurrection of Henry VIII’, the former Lord Chief Justice and then Chief Surveillance Commissioner, Lord Judge asked, “are we ceding power to the executive which should be retained by Parliament?” In answer to the question he posited he concluded, “we have done so, and we have become habituated to it”. His view was that “Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self- inflicted blow, each one boosting the power of the executive”.
The headlines the publication of the Select Committee’s report generated – in the case of the Guardian – “UK intelligence and police using child spies in covert operations” could give rise to the impression that the Order was introducing some new resource to the State’s arsenal of secret techniques. Such an impression would be misleading: individuals under eighteen years of age (so, therefore, children) have been used as “spies” since the time they were first conceived. In the 6thcentury Sun-Tzu, in his ancient text The Art of Warcategorised informants (what he called the “Lord’s Treasure”) into their nature, not age. As to their value more recently, the late Desmond de Sliva QC, in his damning 2012 report into the role of human sources in connection with the murder of Belfast solicitor Pat Finucane, said they were “a potent weapon for the State in countering terrorism”.
The capability to authorise children as spies, or to use the legally correct, if the inelegant term, Covert Human Intelligence Source (CHIS), has existed since October 2000 when RIPA 2000 came into force. So it is assuredly not new, nor is the use of children in such a role a secret: their use is specifically addressed in the Code of Practice on the use and conduct of covert human intelligence sources. The respected civil liberties group Rights Watch (UK) was reported as saying “enlisting children as foot soldiers in the darkest corners of policing, and intentionally exposing them to terrorism, crime or sexual abuse rings – potentially without parental consent – runs contrary to the government’s human rights obligations”. Whilst eloquent and impassioned, it is inconceivable – operationally and legally – that a child would be “enlisted” with a view to being exposed to this multitude of threats. The children used in the context of such operations are already deeply embedded in this criminality – indeed, this is what makes them of use to the State in the first place and recruitment is often a first step to extricating them from it – seen as a turning point; an opportunity for the individual to expunge his or her participation in crime and rehabilitate in exchange for information of assistance in the prevention of, often the most serious crime, including terrorism. These are not innocents being asked to embark on a lifetime “in the darkest corners” like some child Donnie Brasco, or Kingsmen, but, rather, are already there and are looking to find a way out. The current maximum they can be authorised is one month. The government’s proposal and the primary issue that deservedly vexed the Select Committee is to extend this to three months. That is all that is new.
The current position is that, in general, sources are somewhere between 16 and 18 years of age. Where they are under 16 – and this is extremely rare – the parent or guardian must consent. In cases where a parent or guardian is not available, it must a responsible person independent of the State that must give consent. A risk assessment prior to authorisation is mandatory considering both the risk of physical and psychological distress through the use of the child source and if the proposed use exceeds the current one-month period this must be updated.
The research supports the utility of juvenile CHIS but recognises that it also carries with it moral issues.
The government’s response to the criticism post-publication of the Select Committee’s report was to confirm that juvenile sources are “very rarely’ used, as a last resort and only where is both necessary and proportionate to do so in order to convict criminals and terrorists.
Done properly, that is, with the emphasis on the effective management of the risk to the child, juvenile CHIS work. Indeed the author wrote for The Times in 2008 that their use might be the answer to the (then) latest epidemic of juvenile knife crime (the tragic death of young men as a result of knife crime is not new either).
That is not to say the proposed Order is not without its difficulties or a legitimate human rights issue, it is. The biggest criticism has to be the paucity of evidence produced by the Home Office in support of the amendment. The imperative for the Order appears to be to cut back on bureaucracy and little to do with operational need. Nor is it clear where the critical risk assessment would fit into a longer period of authorisation. At present this must be reviewed after one month and every month thereafter and if the driver for the Order is to cut back on the administrative burden this is where it most likely to be. This would be a mistake: risk assessment is integral to safeguarding in this high-risk operational environment. There are wider and more endemic problems. First, trading standards departments across the UK routinely use juvenile CHIS some without authorisation at all, albeit for the relatively anodyne purpose of test purchases of alcohol or cigarettes. Second, authorisation – even in cases of juvenile CHIS – is not, in fact, mandatory under RIPA 2000 (see s 80, discussed here). The Investigatory Powers Tribunal has described it as no more than a “voluntary scheme of self-authorisation”.
The Guardian later reported that the parliamentary joint committee on human rights has now been asked to investigate the use of juvenile CHIS. This is a positive step, although the Investigatory Powers Commissioner (he has oversight for Part II RIPA 2000 activities) should be, if not already, consulted. Any inquiry must examine the benign regulatory framework within which use and conduct of CHIS sit if it is to be effective. Some overlap with the ongoing undercover policing inquiry is inevitable; after all, it is the same provisions in RIPA 2000 that authorises both that is and will be under the microscope.
The use of informants has always been and will remain controversial. Sometimes it is easier to look down the other end of the lens and ask: should a terrorist attack be allowed to happen but for intelligence that could have been obtained from a juvenile source?