On the occasion of launching his Children’s Fund in 1995, Nelson Mandela said ”There can be no keener revelation of a society’s soul than the way in which it treats its children.” On that basis an insight into the soul of British society is provided by the recent revelation that the United Kingdom government recruits and uses children (persons under the age of 18) as spies, or domestic covert human intelligence sources (CHIS), as they are formally known. A July 12 report by a House of Lords’ Committee has put this little-known and controversial practice under the spotlight. Politicians and NGOs have condemned it. A former cabinet minister has described it as “morally repugnant”; the shadow home secretary called for an immediate end to it; Amnesty International described it as “shocking and unacceptable”; and Rights Watch (UK) said the practice “runs directly counter to the Government’s human rights obligations.”
The U.K. government’s position is summarized in its July 3 letter to the Committee. It explains that while using children as spies is currently only authorized in “very small numbers” (although statistics are not kept of how many), there is increasing scope for their use in preventing and prosecuting such serious crimes as “terrorism, gang violence, county lines drug offences and child sexual exploitation.” The government has recently made an Order – the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (the 2018 Order) – so as to extend, from one month to four months, the period for which child CHISs can be authorized at a time. That time extension is what led the Committee to consider the issue of child spies, although (as we explain below) they considered a number of other related matters too.
We pause here to note that here are two key questions regarding the issue of child spies. First: Is the use of child spies justifiable and appropriate? Second: And, if so, what legal safeguards are necessary to ensure that the best interests of children are considered and protected in making decisions concerning such use? Both of these questions should be analyzed by reference to the rights of children as well as law enforcement and security priorities. Before we consider these questions, here is a little more legal context regarding the use of child spies.
- Part II of the U.K.’s Regulation of Investigatory Powers Act 2000 (RIPA) provides for a statutory authorization regime in respect to surveillance and the use of CHISs. An authorization is a necessary pre-condition to the lawfulness of proposed surveillance or use.
- Section 29 of RIPA also provides that authorizations for the use of CHISs are, in general, only to be granted where (1) they are considered necessary on grounds including “the interests of national security,” “the purpose of preventing or detecting crime or of preventing disorder,” “the interests of the economic well-being of the United Kingdom,” “the interests of public safety,” “the purpose of protecting public health,” and “the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”; and (2) the authorised conduct or use is considered proportionate to what is sought to be achieved by that conduct or use. Only a designated person, identified in Schedule 1 of RIPA and relevant secondary legislation, may grant such an authorisation.
- The Regulation of Investigatory Powers (Juveniles) Order 2000 (the 2000 Order) provides for additional requirements that must be satisfied in respect of the authorization of CHISs under the age of 18.
- The 2018 Order, on which the Committee has commented, amends the 2000 Order by extending the duration of an authorization from one to four months (see below).
- The following additional requirements distinguish the authorization of child CHISs from adult CHISs:
- Children under the age of 16 must not be used to spy on their parents or any other person who has parental responsibility for them (article 3, 2000 Order). There is no prohibition on the use of older children for this purpose.
- Where children under the age of 16 are used as CHISs, an “appropriate adult” (e.g. parent) must be present at all meetings between the CHIS and the person representing any relevant investigating authority (in other words, the “handler” of the CHIS) (article 4, 2000 Order). There is no requirement that an appropriate adult be present in meetings with an older child CHIS.
- A risk assessment must be undertaken into the proposed use of a child CHIS (article 5). It must identify and evaluate any risk of “physical injury” and “psychological distress” to the CHIS (article 5(a)). The person granting the authorization must be satisfied that the risks identified are justified and that they have been properly explained to, and understood by, the CHIS (article 5(b)). Where the proposed use is in respect of a parental relationship, particular consideration must be given to whether authorization would be justified (article 5(c)). But article 5 does not expressly incorporate any requirement to have regard to wider risks beyond those relating to physical injury or psychological distress. Lord Simon Haskel noted some of these in the Committee: “There is the risk of being beaten up, of sexual exploitation, of reprisals, as well as the impact on their education and on their mental health.” Nor does Article 5 expressly refer to, let alone give particular weight to, the best interests of the child, which is a fundamental part of the law. As the U.K. Supreme Court has recently noted: Article 3(1) of the Convention on the Rights of the Child (CRC), which the U.K. has ratified provides, “In all actions concerning children … the best interests of the child shall be a primary consideration.” (R (MM (Lebanon) v Home Secretary  1 WLR 771, at ). In that case the Court also cited a judgment of the Grand Chamber of the European Court of Human Rights which explains, “there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight.” (Jeunesse v The Netherlands (2014) 60 EHRR 17, ). Nor does Article 5 provide express guidance for deciding whether the particular risk of physical injury or psychological distress to a child is justified by the particular law enforcement or security matter. As Lord Haskel put it: “Is it right to put one juvenile in jeopardy for the greater good?”
- The maximum duration for an authorization for a child CHIS is now four months (article 6, 2000 Order as amended by the 2018 Order), although an authorization can be renewed upon expiry. This represents an increase from the previous maximum period of one month. It contrasts with the position in respect of adult CHISs, where an authorization can last for up to 12 months at a time.
In its report, the Committee’s main focus was on the extension of the duration of authorizations but, it expressed a number of general concerns in relation to the existing regime; these were also raised in the debate. For example, it referred to the risk that those granting authorization may not be well placed to assess the risks to the mental health of juvenile CHISs; the problems of ensuring a consistent approach between different authorizing authorities, and that the government had failed to explain “how the authorising officer is supposed to weigh the intelligence benefits against the potential negative impact on juvenile sources.”
Although the issue of child spies may end up before the parliamentary Joint Committee on Human Rights for further investigation and consideration, the government has not yet given any commitment to reconsider whether the use of children as CHISs – both in principle and as a matter of practice – is consistent with its legal obligations, including under international law. Thus, as we have already noted: the U.K. is a party to the CRC. The CRC defines a child as every human being under the age of 18 years (except in those cases where the domestic law applicable to the child has an earlier age of majority). In addition to the “best interests” obligation under Article 3(1), Article 19 requires the U.K. to take all appropriate action to protect children from all forms of violence, injury, abuse, maltreatment and exploitation. Article 32 also recognizes the right of a child to be protected from performing work that is likely to be “harmful to the child’s health or physical, mental, spiritual, moral or social development.” Articles 33 to 36 contain express prohibitions to ensure children are protected from drug abuse, sexual abuse, and other forms of exploitation prejudicial to their welfare. These provisions of the CRC are also relevant to the construction and development of the human rights of children under relevant provisions of the European Convention on Human Rights, which is given effect in domestic law in the U.K. through the Human Rights Act 1998.
In our view, the U.K. government should commit to reviewing the existing use of child spies because it is questionable, to say the least, whether that existing use is consistent with its international obligations under the CRC and its domestic human rights commitments. Although it might be necessary, in extreme cases, to use child spies: legal (and other) safeguards must be further developed so as to ensure that the best interests of the potential child spy are holistically reviewed and given primary consideration. For example:
First, although the government has said that child spies are used in “very small numbers” section 29 of RIPA (see above) contemplates children being used as CHISs in a very broad range of circumstances. It is questionable whether this broad range should apply equally to adult and child CHISs. The special interests and needs of children should be recognized and taken into account in deciding the range of circumstances in which they may be used as spies.
Second, the interests of the child must be properly and holistically evaluated in any decision to authorize the use of a child as a CHIS. Article 5 of the 2000 Order does not provide for an adequate risk assessment procedure. For example, those granting an authorization are not expressly directed to treat the best interests of the child as a “primary consideration.” That is an important guiding principle in evaluating the risks to a child’s interests and deciding whether those risks can be justified in a particular context. Similarly, authorizing officers are not required to have regard to risks beyond those relating to physical injury and psychological distress, including the broader impact on a child’s social and educational development. Moreover, it is unlikely that the statutory risk assessment process can operate adequately in practice without expert input to assist the decision-maker in understanding the likely impact of both the proposed use on the present well-being of the child concerned as well as the potential future or long-term impact on former child spies.
Third, there is a dubious distinction in the 2000 Order between children under the age of 16 and older children. As noted above, the CRC defines every person under the age of 18 as a child, although it recognizes that the needs of children change with their age. We do not see any good reason for depriving CHISs aged over 16 of the assistance of an appropriate adult in the context of discussions with their handlers. Similarly, it is unclear why the government considers that it is potentially appropriate for a 16-year-old to be asked to spy on his parents, in circumstances where it accepts that it is never appropriate for a 15-year-old to be asked to do so.