Conduct of Undercover Policing and Surveillance Operatives Bill [HL]
Tuesday 2nd June 2026
(1 month, 3 weeks ago)
Lords ChamberRead Full debate Conduct of Undercover Policing and Surveillance Operatives Bill [HL] 2026-27 Read Hansard Text
Conduct of Undercover Policing and Surveillance Operatives Bill [HL]
Friday 17th July 2026
(1 week, 3 days ago)
Lords ChamberRead Full debate Conduct of Undercover Policing and Surveillance Operatives Bill [HL] 2026-27 Read Hansard Text Watch Debate
Baroness in Waiting/Government Whip (Baroness Ramsey of Wall Heath) (Lab)
My Lords, before we begin our debate, I remind the House that the advisory speaking time for Back-Bench contributions is four minutes. This is to allow all colleagues to participate fairly and the House to rise at a reasonable time, around 3 pm.
Baroness Hamwee (LD)
My Lords, our reaction to rape, to violence against women and girls, to coercive control and to grooming has intensified over recent years, along with greater understanding of what it means to be a target, and the protection of human rights is always topical. This includes the prohibition of inhuman or degrading treatment. All these are what underlie the Bill. It has been known for some time that some undercover police officers entered into intimate sexual relationships with women members of organisations they had infiltrated. It is still not known how many women were deceived into long-term relationships with “boyfriends” who had assumed false names. It seems that there were upwards of 68. In some cases, children were born.
The Bill looks to the future, aiming to learn from the past. These women were activists, not terrorists. They went on protests and they were involved in planning protests. I do not suggest that the activities were insignificant, although I think some were fairly minor. Nor am I arguing that there is no place for undercover surveillance: that is not a matter for today. It would need a psychologist properly to describe the life-changing impact on the women targeted. They were in apparently close, forever relationships, only for their partners suddenly completely to disappear. That caused such anxiety, as it would. You would be distraught. They made huge, extraordinary efforts to find them. Disturbing information started to come to light: true identities, wives and children, and assumed names taken from dead children. It is not difficult to understand why such an experience means it is so hard—for some people, impossible—ever to trust again, including trusting themselves.
In 2015, the then Prime Minister Theresa May—the noble Baroness, Lady May—established an inquiry which, in its 11 years so far, has identified 30 officers who used this technique, although the total is not known. The inquiry has brought together many of those targeted. They found one another and found that their experiences were so similar, as they would be. The spy cops had managers, even regarding them as mentors: a whole structure behind them. Their seniors did not turn a blind eye. On the contrary, there was a so-called “tradecraft manual” in use, so no wonder their stories echo one another.
This is not a matter of a few bad apples, or even a barrel-load. Intimacy, the very closest, has been an instrument of surveillance by the state, not a risk at the margins which could be managed by better safeguards. The women targeted cannot have been seen as human beings capable of being injured. Indeed, some of the officers have blamed the women—something we hear about with regard to domestic violence.
The very system regarded as acceptable is and was simply wrong. The state has recognised this. Apologies have been made and damages paid. In 2015, the Met accepted that the relationships were
“deceitful, manipulative and wrong … a violation of … human rights”.
In 2021, a tribunal said that
“we are driven to the conclusion that either senior officers were quite extraordinarily naïve, totally unquestioning, or chose to turn a blind eye to conduct which was, certainly in the case of”—
a particular officer—
“useful to the operation”.
There was a finding of a violation of human rights and discrimination.
The Bill makes such conduct an offence. It uses the term CHIS, covert human intelligence source, which is defined for the purposes of the Bill. I accept that there are arguments for and against using a term already in use in other legislation. However, an intimate sexual relationship cannot be “organised”, as what would otherwise be law-breaking surveillance can be under the Regulation of Investigatory Powers Act. The penalty is the same as that for rape. It is a distinct offence in order to avoid the issue of whether the conduct is rape under existing legislation. Inciting or
“intentionally encouraging or assisting an offence”,
to cover the role of managers handling undercover operatives, is itself an offence. There is provision for a defendant who is in the intelligence services to apply for an anonymity order in proceedings, as I am aware of the issue of identifying intelligence officers. A duty of candour and assistance is included, although that may be overtaken by the Hillsborough Bill, or Act as it will be. Causing a person to engage in sexual activity without consent under the Sexual Offences Act is not affected: this Bill applies in the narrow situation of undercover surveillance.
Often, when we are passing legislation, noble Lords suggest guidance as a means of addressing a tricky issue. There is guidance. The College of Policing’s Authorised Professional Practice, published in 2021, says:
“It is never acceptable for a UCO”—
undercover officer—
“to have an intimate sexual relationship with those they are deployed to infiltrate and target or encounter during their deployment. Having an intimate sexual relationship must not be used as a tactic by a UCO”.
So far, so good. But there is a “but”. It continues:
“If a UCO engages in an intimate sexual relationship (for example, they perceive an immediate threat to themselves and/or others if they were not to do so) this activity will be restricted to the minimum conduct necessary to mitigate the threat”.
It goes on to provide procedures to be followed. So, the authorised professional practice is not an absolute bar. I wondered what situation this might be addressed to: a female UCO, perhaps, or a UCO being forced at knifepoint to take part in a gang rape. But would there not be a defence to the charge, namely self-defence?
I am conscious that I have not mentioned the people who seem to have been regarded as collateral damage: the wives and families of the UCOs, and the parents of the dead children whose names were assumed. I am afraid that my Bill is too narrow for that; actually, I feel a bit bad about that.
I am sure that the Minister will tell the House that the Government must await the outcome of the Undercover Policing Inquiry before addressing the situation, and I know that they have announced a consultation on the future of the inquiry. I do not accept that we need the outcome to know that this conduct is wrong. It must be outlawed. Otherwise, the apologies that have been made will seem pretty hollow and the future could hold further distress and damage, and then more apologies. No woman should experience this form of abuse again. These are means which cannot justify the end. I had never thought to use this term, but this was state-sponsored abuse. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I strongly support the Bill, and I do see it as a Bill dealing with state-sanctioned abuse. The Bill directly responds to the abusive nature of these sexual relationships which were built on deception. The deception that is involved negates a person’s ability to exercise autonomous choice about who they are having sex with, not merely what act they are consenting to, and can be morally equivalent to non-consent. Applied here, the woman cannot be considered to be in a position of consenting to sex with the actual person—the serving police officer or a member of our secret services—because that identity is concealed as a matter of operational necessity. That cannot be a rationale.
Over the years, I have seen and met a number of women directly affected by this. There is no doubt as to the nature of the pain and the emotional and psychological harm that it has done to them: one day, suddenly, this person disappears, and it transpires that they had another wife and children elsewhere. I have met one of the women who had a child by the man, who was using her to access an environmental group. The deception perpetrated by undercover police violated her right—and the other women’s rights—to sexual autonomy and resulted in severe emotional and psychological harm to many of them. They are having to have psychological help for post-traumatic stress disorder. The women say:
“Our ‘consent’ to sexual activity with those men was fraudulently obtained. They knew that we would never have consented to sex with them had we known who they really were. Their deception removed our ability to meaningfully consent—our freedom to make decisions based on our own priorities and values”.
I am sure that the response of the Government will be that we should await the outcome of the inquiry, which is currently taking place and is due to carry on right through the summer. I suspect that it will suggest all manner of protocols that already exist about what is proper behaviour for those who are running informants or who are involved in information-gathering activities. I agree with the noble Baroness, Lady Hamwee, that the Bill should not need to await that outcome.
This is absolutely reprehensible behaviour. It was accepted by senior officers on a “Don’t ask, don’t tell” basis. They knew that the officers were involved in relationships, but they did not know what to ask about the nature of those relationships and they chose not to ask. That, in itself, shows a lack of candour. We have been talking recently about the Hillsborough changes and the need for candour in public services and from all those who might be involved in processes of justice. I strongly urge the House to go forward with the Bill, and I commend the noble Baroness, Lady Hamwee, for bringing it to our attention, because this remains a scar on the lives of many of those women—over 50 women that we know of—and a scar on our system.
Lord Garnier (Con)
My Lords, I thank the noble Baroness, Lady Hamwee, for her introductory remarks about her Bill. Unquestionably, the conduct of undercover agents of the state—be they police officers or members of the secret services—is a matter of great public interest. For women who have had relations with men who they thought were, for example, fellow protestors but turned out to be undercover police officers—and for their children—it is a matter of acute and distressing private interest as well, as the noble Baronesses, Lady Hamwee and Lady Kennedy, explained so movingly.
The Bill moves us into new or different legal territory. There is, as the noble Baroness said, College of Policing guidance on undercover operatives having intimate and sexual relations with those they are deployed to infiltrate and so on. However, that behaviour—as long as it is consensual—is not currently a criminal offence. We also have the Mitting inquiry, to which the noble Baroness, Lady Kennedy, referred, but that is yet to produce its final report; I accept that report has been far too slow in coming.
I entirely understand the motives of the noble Baroness, Lady Hamwee, in bringing the Bill to the House. However, my concern is that it criminalises, via a Private Member’s Bill, activities that, at the time of the behaviour in question, were consensual. We are debating very delicate and very difficult questions, and I do not want to be misunderstood. I certainly do not condone rape or serious sexual assaults. I appreciate that a person who has sexual intercourse with another on the express understanding that they will wear a condom, but then does not wear one, can be prosecuted. Someone who has sexual intercourse with another who dishonestly states that they do not have a sexually transmitted disease, or dishonestly fails to state that they do have one, and infects the other person cannot claim that the victim consented to the sexual intercourse and thus the infection brought about by that lie.
Now, however, is not the time to lay out detailed arguments about the statutory definitions of rape or of consent, or to contrast and compare the provisions of the Sexual Offences Acts of 1956 and of 2003, or the Sexual Offences (Amendment) Act 1976. I say in passing that Section 3 of the 1956 Act made it an offence to procure a woman to have sexual intercourse by false pretences or false representations. That provision was repealed by the 2003 Act but it has not been replaced. Perhaps it should be, but I am not sure that this Bill is the right way to do that.
Under this Bill, we have a dilemma about what we properly disapprove of and what we ought to make a criminal offence. Whether consent to intercourse was given by a woman to an undercover police officer who she did not know at the time was an undercover police officer was considered in Monica’s case—formally known as R v DPP [2018] EWHC 3508. In essence, the Divisional Court held that the deception regarding an undercover police officer’s true identity and profession did not vitiate consent to sexual relations. The woman in question, whose name was disguised as Monica, claimed that she would not have agreed to her sexual relationship with the police officer had she known that he was a police officer masquerading as an environmental protester and, her agreement having been procured by his deception, her consent to sexual activity with him had been vitiated. The DPP refused to prosecute the policeman for raping Monica, and she sought to challenge that decision in the Divisional Court, which refused her application. It ruled that deception vitiating sexual consent is strictly limited to fraud regarding the nature of the act or the identity of the person. It also went on to say that if the law is to be changed, it should be changed here in Parliament, and here we are.
I hope I am not making a dull procedural point, but it seems that a matter of this importance—and it is important—should be dealt with by the Government, with the advice of the Law Commission and/or government lawyers, but it should not, despite its merits, be a matter for a Private Member’s Bill. I entirely sympathise with what the noble Baroness is after; I merely question whether this is the vehicle through which to achieve it.
Baroness Manningham-Buller (CB)
My Lords, I thank the noble Baroness, Lady Hamwee, for alerting me to this legislation; I have been out of action from the House for nearly six weeks and I had failed to spot it. She knows broadly what I am going to say, which is that I have sympathy with what she is trying to achieve, for the reasons the noble Baroness, Lady Kennedy of The Shaws, mentioned and qualified by what the noble and learned Lord, Lord Garnier, just said.
The noble Baroness, Lady Hamwee, alerted me to the Bill because she said it had an application to the Security Service. There is no reference to the Security Service in the legislation because, I would argue, it is poorly drafted. You cannot suddenly change the terms of reference for this world. RIPA and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 make it clear that a covert human intelligence source is a member of the public who provides intelligence in secret to the authorities. The people listed at the beginning of the Bill who are defined as CHISs are actually the authorities who run those CHISs. I am afraid that this is deeply confusing, so if this Private Member’s Bill survives it needs to be redrafted to make that clear.
We are talking about undercover policing. We are, obviously, waiting for the Mitting report. I make no apology for that behaviour; it was disgraceful in every way and it has done considerable damage. If an undercover member of the Security Service had been found to behave like that when I was there then they would have been sacked, and they should be today. Whatever the Government’s reaction to this, the Bill has to be rephrased. You cannot just say that, from now on, an elephant is a giraffe. A CHIS is a member of the public who gives information in secrecy—in some cases at risk of their lives—to the authorities to illuminate a threat. You cannot just suddenly say that the authorities are CHISs. However, I repeat my gratitude to the noble Baroness, Lady Hamwee, for alerting me to what she is, correctly, trying to do. Sorry for being pedantic, I just do not think the terminology is right.
Lord Paddick (Non-Afl)
My Lords, I declare my relevant interests as a non-executive director of the Metropolitan Police, but at no time during my service as a police officer did I have responsibility for undercover officers and I have no professional expertise in this area.
I congratulate my friend the noble Baroness, Lady Hamwee, on her Private Member’s Bill. I absolutely agree in principle, as other speakers have, with what she is trying to achieve: undercover officers should be prohibited from engaging in intimate sexual relationships with those who they are deployed to infiltrate and target, or encounter during their deployment, and that such activity should be unlawful and subject to criminal prosecution and sanction if it does occur. I believe that Section 78 of the Sexual Offences Act is too broad, as suggested in the Bill, as prohibition should be limited to physical intimate sexual activity; non-physical intimacy may be necessary and proportionate.
Rather than the Bill as drafted, under Section 29B(10) of the Regulation of Investigatory Powers Act 2000, the Secretary of State may, by order,
“prohibit the authorisation … of any such conduct as may be described in the order”.
I believe that the Home Secretary should prohibit the authorisation of intimate physical sexual activity between an undercover officer and those he is deployed against, or encounters in the course of such deployment. I am told that authorising officers would never, nowadays, pre-authorise such activity, but this change would also prohibit retrospective authorisation. This would not require primary legislation. I believe that it should also be enshrined in primary legislation that those deceived as to the identity of the person they had engaged in physical intimate sexual activity with cannot be said to have given informed consent to such activity, whether the person is an undercover officer or not, to address the points that the noble and learned Lord, Lord Garnier, has just made.
Taken together, these two changes would mean that an undercover officer who deceived someone as to their true identity could be found guilty of indecent assault or rape, for example, and, if found guilty, could be subject to the relevant penalty for that offence. The police may say that this could put undercover officers in danger—for example, knowing the law had changed, those targeted could test a suspected undercover officer by forcing them to have sex. However, undercover officers are now closely monitored, often in real time, and their handlers should be able to withdraw the officer before the situation gets to the stage where physical intimate sexual activity takes place. Undercover officers are regularly supervised, to ensure that they are not being drawn into inappropriate relationships. I believe that the greatest threat to women from police officers no longer lies with undercover officers, who are now among the most closely supervised and monitored of all police officers.
However, if an officer does end up engaging in such sexual activity—for example, because his life or the lives of others would otherwise be endangered—a statutory defence should be available to an undercover officer charged with an offence to prove that life was in danger if he had not engaged in such activity. It would then be a matter for a jury to decide. Instances of undercover officers engaging in such activity today should be exceptionally rare, but, if they do happen, officers should be prepared to defend themselves in the criminal courts. That is the four-minute summary. A full version is available on request.
Lord Thomas of Cwmgiedd (CB)
My Lords, I too add my congratulations to the noble Baroness, Lady Hamwee, on raising this point. It is important for two reasons: first, the terrible damage done to those who have suffered as a result of what happened; and, secondly, and to my mind importantly, the damage this does to the police force. On this issue, the law needs to be clear.
We look to when the CHIS Act, if I might call it that, was before this House and the prohibition of the authorisation of certain activities. Lady Massey of Darwen’s amendment was passed in this House, and it would have prohibited sexual relations being authorised. There were reasons put forward as to why that was wrong. The other place took a different view and there was no prohibition. However, as the noble and learned Lord, Lord Garnier, has explained, the issue of consent in sexual relations is a very unclear part of the law. It needs looking at. There have been many proposals for reform, and it seems to me wholly impossible to try to deal with the problem through an easy amendment to the Criminal Justice Act relating to sexual relations. We are therefore concerned with making it clear that under no circumstances can a person who is an undercover officer engage in sexual relations.
I must say I found the College of Policing’s guidance to be deeply unfortunate. There is no reason why it tries to qualify the very clear statement that people should not engage in sexual activity. The one solution to this problem would be for the College of Policing to be more sensitive to these issues. It is accountable to the Home Secretary, and no doubt there are good reasons why the Home Secretary does not want to go into the details of advice given. However, the College of Policing should itself have a means of examining the guidance it gives, because, in the part read by the noble Baroness, Lady Hamwee, what it states is plainly unacceptable. There is no excuse for engaging in sexual relations.
I therefore broadly welcome—I think everyone does—the attempt to put the law right and to prohibit undercover officers from engaging in sexual relations, full stop, with no qualification. I wish the police would put the matter right themselves—that is their duty. If they do not, I hope the Home Secretary will do it. I certainly do not think this should await the conclusion of Sir John Mitting’s inquiry, and, in any event, we have no idea when that will end. I note that, from what they stated last week, the Government are consulting on the future of the inquiry.
Action needs to be taken. I do not want to go into the technicalities—there is no time to do so—but the police should be the first step and the Home Secretary the second step, and it must be made clear that this activity should be permitted under no circumstances.
The Lord Bishop of Newcastle
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for bringing this Bill before your Lordships’ House. It is an honour to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, in this debate. I acknowledge the contributions from your Lordships who have drawn on their expertise and experience, which is far beyond my own.
Before turning to the substance of the Bill, which I support, I wish to acknowledge the extraordinary service that our police officers give to this country. In doing so, I pay tribute to PC Jess Turnbull of Northumbria Police, who tragically died in the line of duty at just 19 years of age. Her funeral was held in Newcastle Cathedral last Friday. We continue to hold her family, friends and colleagues in our thoughts and prayers, giving thanks for her life and her willingness to serve others at such a young age. Her death reminds us that policing is a vocation of public service, often carried out at great personal cost. It is in that spirit that I approach the Bill.
This Bill is not about preventing legitimate activities. Rather, it addresses one specific question, which, at its heart, is an ethical question before it is a legal one. The Bill concerns one of the most fundamental aspects of human life: the ability to trust another person. When an intimate relationship is deliberately entered into or maintained under a false identity for the purposes of surveillance, genuine consent is fundamentally compromised and profound harm can result. We have heard the testimony of those whose lives have been permanently affected by such experiences.
Recognising that harm is not a criticism of policing or the secret services. Rather, it affirms that those engaged in covert work, and those who authorise it, deserve clear ethical and legal boundaries within which to carry out their responsibilities. I therefore believe the Bill rightly recognises an ethical boundary that should not be crossed. Clear statutory limits are not a sign of distrust in such operations; they provide clarity for those exercising exceptional powers, protection for the public, and confidence that those powers are exercised within a clear moral and legal framework.
Public trust is one of the greatest assets that our police possess. It is painstakingly built but easily diminished. Effective policing depends upon not only the lawful exercise of power but public confidence that such authority will be exercised wisely, proportionately and with integrity. As the Bill progresses, I hope we will give careful attention to whether its provisions are sufficiently clear, oversight is sufficiently robust, and those undertaking covert work are themselves given the guidance and protection they need. Ethical clarity is not an obstacle to effective policing; it is one of its foundations.
The tragic death of PC Jess Turnbull reminds us of the courage that policing demands. We honour that courage by ensuring that those entrusted with extraordinary responsibilities are supported by laws that reflect the highest ethical standards. In doing so, we strengthen not only our policing but the trust between the police and the communities they serve, upon which our common life ultimately depends.
Baroness Berridge (Con)
My Lords, I am grateful to come late in the list, as most of the drafting problems in this Private Member’s Bill have been spoken to.
I recognise that the statutory guidance says that these relationships should not happen, or only in desperate circumstances, but a breach of criminal law gives victims better redress. It would then not only be in the annual IPCO report but would be investigated by the police, with fuller disclosure to the victims. Despite 11 years of a statutory inquiry, the number of victims is not reliably known—I think it is 68 adults and four children.
The added protection of criminal law is especially important for young people who, in desperate circumstances, may have entered into a relationship with a juvenile CHIS. I recognise there are very few juvenile CHISs, but victims could be young people, due to contexts outside the domestic context, such as that of youth violence, in which juvenile CHISs are deployed. I hope His Majesty’s Government will consider a role for the Children’s Commissioner and her view on this, and consider the long-term outcomes for juvenile CHISs. It seems that only current juvenile CHISs are within the remit of the IPCO’s report. Evidence on the long-term effects on a juvenile would aid the detailed risk assessments made by senior authorising officers on how to conduct or deploy a juvenile CHIS.
While today the media is seized of the case of agent X and lies told on three occasions by MI5 to our courts, I am grateful that this Private Member’s Bill allows me to put on public record my surprise at discovering, in my last-minute research, that it was only yesterday that a public consultation on the statutory inquiry was announced, along with that other significant news. I proposed and sat on the Select Committee on the Inquiries Act, and I cannot recall in evidence such a situation—if it exists, I suggest it is probably in Northern Ireland—where the commissioning department seeks to possibly end a statutory inquiry. Was that at the request of the victims? I suspect not, and I hope the Minister can confirm that they had advance notice of the consultation.
If I were a victim and knew that the inquiry had cost £138 million and that the Home Secretary, the decision-maker, had been asked to save over half a billion pounds from her budget by 2028-29, I would wonder how she is going to manage such a conflict of interests. Also, how does the Home Secretary by way of a consultation manage the allegations that there has been an inequality of arms? Core participants with deep pockets have apparently launched lengthy legal challenges, such as asking for blank anonymity orders, that have delayed matters significantly. Is the Home Secretary going to be supplied with how much money each of the 250 core participants has had for their legal fees? If the inquiry is ended, I spy a judicial review on the horizon.
These women were victims of violence—VAWG, which is a government priority—so I suggest that issuing publicly the consultation yesterday, and I have a printed copy here, was at best disrespectful to them. Yesterday’s findings by Sir John Goldring are of course taking the media presence and are disappointing. I want to believe that MI5 and MI6 are the stuff of Operation Mincemeat and James Bond, that rules are bent sometimes but only in a higher, noble cause. Agent X, this situation and the peculiar case of Gareth Williams in 2010, when I lived in Pimlico, undermine such trust. I hope that the Minister, in the enhanced oversight of MI5 that was promised yesterday by the Home Secretary, will thoroughly consider the role of the Intelligence and Security Committee of Parliament, and perhaps even whether the inquiry should continue, because they are parliamentary representatives of the victims and the undercover police.
Baroness Neuberger (CB)
My Lords, I too thank the noble Baroness, Lady Hamwee, for bringing the Bill forward, and I support it. I am speaking today to express my shock and outrage that after all the publicity this issue has had, there is still no absolute bar on sexual relationships between undercover police operatives infiltrating organisations and women within those organisations.
The noble Baroness, Lady May, set up a public inquiry into all this 11 years ago under the chairmanship of Sir John Mitting, and we have been hearing about that from the noble Baroness, Lady Berridge. That inquiry has already cost more than £135 million and, as we have heard, is not yet complete. Yet it is important to recognise that its interim report for tranche 1, published back in June 2023, made it clear, in the case of the special demonstration squad, that the ends did not justify the means and that
“had the use of these means been publicly known at the time, the SDS would have been brought to a rapid end”.
Meanwhile, the CPS decided not to prosecute any of the police officers who were known to have had intimate sexual relationships while operating undercover. It was that decision particularly that has led to campaigners calling for a change in the law. The Bill provides for such a change. It also provides women with some reassurance that they will not be treated in this way by police or any other undercover operative, and I note what my noble friend Lady Manningham-Buller has said.
The Bill should go some way to restoring trust in the police. We need to be able to trust the police; I wholly agree with my noble and learned friend Lord Thomas of Cwmgiedd. I am a rabbi, and as somebody who has witnessed some incredibly impressive and brave policing by the Met in recent months and years, protecting the Jewish community, I am exceptionally grateful to them. But my more general confidence would be even greater if the Government would support the Bill, or at least the principles within it, give clarity and reassurance to those who fear that such behaviours could still happen, and make it clear that should that happen, the penalties would be huge.
Sir John Mitting said that if the public had known such things occurred within the SDS, it would have been brought to a rapid end. I hope the Minister will give the Bill his support and bring even the slightest possibility of such undercover intimate relationships, particularly by the police, abusive by their very nature, to a rapid end.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I am very pleased to be able to support my noble friend Lady Hamwee’s Bill and her absolute determination to close what is a clear gap in the legislation.
I am not a lawyer or any sort of expert on this. I am moved to speak today because my noble friend Lady Hamwee and Justice organised a meeting where we could hear from some of the women about their experiences. In my time in this House, I do not think I have had a more upsetting experience. Moving would be the wrong word, when you started to think what they had been through. Their lives had been stolen. Not only had their time been stolen but their ability to trust had also been stolen, as my noble friend said. That is very hard—probably impossible—to ever get back. Then, of course, there is the issue of the children. People have said there are four, but there might be more. Do they have fathers? They obviously have biological fathers, but they actually have no fathers. Do they have half-siblings?
All those questions lead me to think that for all the arguments that the noble and learned Lord, Lord Garnier, made—which I will not repeat, because noble Lords have heard them—this change to close this loophole in our law really needs to happen. Our national institutions allowed, encouraged or condoned these in effect premeditated crimes, which went on for years. This needs to be clearly outlawed, and I support the Bill.
Lord Davies of Gower (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for bringing the Bill before your Lordships’ House today. I begin by declaring an interest: I was a police officer for 32 years, serving in the Metropolitan Police and the then National Crime Squad, where, as a senior investigating officer, I conducted a number of covert operations.
I should start by saying that I entirely understand the concerns that the noble Baroness, Lady Hamwee, has raised. There have been scenarios where covert human intelligence sources and undercover officers have acted in a manner that is totally unacceptable. These have been acknowledged, and I fully appreciate her intent with the Bill.
We need to also acknowledge that undercover policing has been a developing aspect of criminal investigations through the years and, by its very nature, is intended to push the boundaries and test the law through the courts in order to arrive at an agreed level of acceptance. Above all, it is an essential tool in the investigation of serious and organised crime. Knowing what I know and having been there on the front line, I cannot support the Bill. A blanket ban on undercover officers forming these kinds of relationships is something we should be very cautious of indeed. The simple fact is that undercover operations are incredibly dangerous—potentially the most dangerous aspect of policing, but also one of the most necessary. Some of the biggest successes in policing have come from undercover operations.
To successfully and safely deliver these operations, uncomfortable decisions often need to be made. We may not like these decisions, and they may offend our liberal sensitivities, but they are necessary decisions none the less. Sometimes those decisions require officers and sources to break the law or to engage in unethical behaviour. In 2021, Parliament legislated to create a framework in which covert human intelligence sources could be granted authorisation to break the law in the course of their operation. We did that because we recognised that a statutory footing was required, with the necessary oversight that goes with it, but also because we understand that there are occasions that warrant such action.
In some deployments, the operational environment necessitates the covert officer establishing a romantic or intimate relationship with a target, and this has to be weighed against the national interest. That may be a hard truth, and one that the noble Baroness might not wish to hear, but it is the truth none the less. It might be that establishing such a relationship is the only way to keep the source close enough to the target, so it might even be the only option to keep the source alive.
I am even more concerned about the breadth of the offence in Clause 1. It states that a CHIS commits an offence if they engage in an intimate sexual relationship with any person they have been deployed to target, a person who is a member of the group they have been deployed to target or, and this is the problem, a person whom they encounter during their deployment. But the Bill does not define what is meant by deployment, nor does it place any restrictions on what would be considered to be the bounds of a deployment. What if an officer is involved in an operation that requires them to be undercover and involved only at certain times of day? What if, outside the times they are embedded in the operation, they are in a genuine intimate relationship? They may have a partner or romantic interest whom they have just started seeing. This might not apply to most undercover operations, but it may very well apply to some. The language in the offence is so broad and loose that it could be taken to mean any person whom the CHIS encounters at any point during the operation, irrespective of whether that person is connected with the operation. I suggest to the noble Baroness that the drafting of the offence in Clause 1 does not live up to scrutiny.
I also take issue with the maximum criminal penalties that the noble Baroness has included. An officer or source found guilty of committing this new offence would be liable in conviction to a sentence of life imprisonment—for forming a relationship with a person in the course of investigating serious criminality. Ultimately, these people put their lives on the line. They deserve our support and our respect, and they deserve Parliament giving them the tools they require to get on with their operations. A Bill such as this would simply hamper their ability to infiltrate and disrupt organised crime groups, terrorist cells and the like, and could put them in greater peril. This is not something I can ever accept and that is why, on this side of the House, we cannot support the Bill.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I thank the noble Baroness, Lady Hamwee, for tabling this Bill. As we have seen, it has rightly generated an impassioned debate across the Chamber on the important issues it raises. I share the concerns of all noble Lords over the historic allegations about police undercover operations. Such behaviour, which we have discussed this morning, is appalling and should rightly be condemned. The noble Baroness, Lady Hamwee, is right to describe the impact of these events on their victims as life changing, and I completely appreciate the intention of the Bill.
Public trust in the police is important, as the right reverend Prelate the Bishop of Newcastle said. I join her in paying tribute to PC Jess Turnbull, who, as she said, paid the ultimate price for serving and protecting us. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, the reputation of the police is an important part of our discussions. I pay tribute to the noble Baroness, Lady Neuberger—once, and technically still, my rabbi at West London Synagogue—and what she said about their acts that we see daily and the way they protect all communities, particularly, over recent weeks and months, the Jewish community. When we talk about things that harm the reputation of the police, we must do so with great care and deliberation.
As noble Lords know, and as was mentioned many times in the debate, the Undercover Policing Inquiry was established to get to the truth of those events that we heard about and to ensure that lessons are learned for the future. Yesterday, my noble friend Lord Hanson of Flint announced his intention to run a focused public consultation to decide the future of the inquiry. The information gathered from this consultation will inform the next phase, ensuring that any new approach is effective, proportionate, timely and firmly grounded in the needs and priorities of those affected. The Government will, of course, carefully consider the inquiry’s findings and any recommendations in due course.
That said, the current landscape around undercover operatives is much changed. Steps have been taken to address many of the concerns and to help prevent that sort of historical activity from occurring again. This includes enhanced measures that apply to certain law enforcement agencies introduced via the so-called relevant sources order 2013. It provides a specific regime for the authorisation of undercover operatives for the police and certain other law enforcement agencies. Authorisation of such deployments is subject to an enhanced authorisation process—broadly, at assistant chief constable level—and furthermore ensures that deployments lasting over a year are subject to authorisation by a chief constable as well as prior approval by a judicial commissioner.
These enhanced arrangements are complemented by the independent oversight provided by the Investigatory Powers Commissioner, the right honourable Sir Brian Leveson. As noble Lords will be aware, he will soon be joining us in your Lordships’ House, and I congratulate him on his appointment. I am sure he will bring much clarity and insight to our future debates. The commissioner provides robust independent oversight of CHIS powers and has a mandate to audit and inspect compliance by public authorities. Where issues are identified, Sir Brian takes effective action, and public authorities exercising these powers must take remedial steps in response to his findings. Furthermore, the Investigatory Powers Tribunal provides an independent right of redress for anyone who believes they have been subject to unlawful activity by a public authority using covert investigatory techniques.
I have spoken thus far about undercover operatives. However, under the Regulation of Investigatory Powers Act 2000, a covert human intelligence source—I apologise for using the acronym earlier without expanding it—is defined in such a way that it also includes members of the public tasked with gathering intelligence as informants, who I will refer to henceforth as informant CHIS.
As the noble Baroness, Lady Manningham-Buller, so eloquently set out—it is very good to see her back in her place—it is unclear whether the Bill is intended to include both undercover operatives and informant CHIS. Informant CHIS use their real identities and existing relationships to obtain information that is passed back to their handlers, generally for intelligence rather than evidential purposes. Their status as an informant CHIS should remain a secret and may not be revealed even to those closest to them, such as a life partner. Therefore, if this Bill extends to informant CHIS, many such individuals may be captured by the Clause 1 offence by virtue of having an existing relationship where no deceit as to their real identity or intentions is involved.
CHIS play a vital role in preventing, detecting and safeguarding the public from some of the most significant threats we face. We should be under no illusion that they do so at considerable personal risk to themselves, as the noble Lord, Lord Davies of Gower, set out. The Bill, while well intentioned, will unintentionally increase significantly both the threats to the public and the risks to those acting as sources.
There is an issue around the clarity on sexual offences, which the noble and learned Lords, Lord Garnier and Lord Thomas of Cwmgiedd, referred to. The Clause 1 offence is tied to Section 78 of the Sexual Offences Act 2003, which does not specifically define intimate sexual activity and includes reference to “any other activity” considered by a reasonable person to be of a sexual nature. I mention this because the use of online undercover operatives can be a particularly effective tool in the identification and prosecution of those engaged in online child sexual exploitation. As part of that, it may be necessary for undercover operatives to communicate with those suspected of engaging in such vile behaviour. This leaves open the prospect of any communications with subjects of interest which are considered by the recipient to be of a sexual nature to be caught by the Clause 1 offence. The result of this would be a life sentence for the online undercover operative and, if taken with the provision of Clause 6(6), his or her name and marital and family status being disclosed to a paedophile as part of any proceedings.
Let me give noble Lords a case study to illustrate the potential harm the Bill could cause to vital undercover policing operations. Over a two-year period from 2023, Kurt Devoy-Foster attempted to engage in sexual communication online with girls aged between 12 and 15 years old. However, they were not children; they were undercover police officers. Devoy-Foster was ultimately charged with attempting to engage in sexual communication with a child, attempting to cause or incite a child to engage in sexual activity and failing to comply with his notification requirements. He was jailed for seven years and six months and made subject to an indefinite sexual harm prevention order. The Bill would cause a significant impact to the work that undercover operatives are able to undertake in scenarios such as this.
If your Lordships will indulge me I will give a further example, which is close to my heart and, I suggest, all our hearts—perhaps particularly that of the noble Baroness, Lady Neuberger. Three individuals were recently convicted in connection with a foiled terrorist plot intended to target the Jewish community in Greater Manchester. In 2023, Walid Saadaoui came into online contact with a man he believed shared extremist views like his own. However, unbeknown to him, he was in contact with an undercover police officer. During these discussions, plans were made to import firearms from abroad which could be used in an attack. The individuals involved are serving police sentences.
I hope these examples show how crucial the CHIS capability can be, and what the impact would be of creating a checklist to test undercover officers and CHIS against. If this undercover operation had not been stopped, a terrible terrorist act may have ensued. The Bill would create a means for some of the most sophisticated actors to identify those who may be acting against them by, as I said, effectively creating a checklist to test suspected CHIS against.
I do not say this lightly, but, given the offences in scope of the Bill, such as those related to sexual conduct, this would in all likelihood be inadvertently responsible for creating a deeply troubling method of vetting by the most violent criminal groups. Those seeking to join such groups will likely be instructed to engage in profoundly immoral behaviour to prove themselves, or face significant repercussions, which may include serious injury or death. For those not acting on behalf of the state who are seeking to join such criminal groups, this increases the likelihood of being ordered to inflict sexual harm on innocent members of the public.
In contrast, for undercover operatives, published guidance, which noble Lords referred to, states that it is never acceptable for them to have an intimate sexual relationship with those they are deployed to infiltrate and target, or encounter during their deployment. However, that is caveated, for good reason, where they perceive an immediate threat to themselves or others, in which case such activity must be kept to the minimum conduct necessary to mitigate the threat. Any such conduct must immediately be reported and steps taken to investigate and establish the facts.
I turn briefly to some questions the noble Baroness, Lady Berridge, asked about the inquiry and juvenile CHISs. Juvenile CHISs are used only in exceptional circumstances; I believe that in 2024, there were only four out of around 1,100 and none under the age of 16, and enhanced safeguards are in place. The duty of care that a public authority has towards a juvenile CHIS does not end when their authorisation or deployment ends.
The noble Baroness asked about the ISC, which of course already plays a significant role in the assurance, accountability and oversight of MI5 on behalf of Parliament. On the consultation, no outcome, such as ending the inquiry, is pre-judged, and it depends on the response received. I hope that that addresses the questions that the noble Baroness raised. I am aware that there were a few, but I will of course reflect on Hansard and I undertake to write to her if necessary, and that of course goes for all contributions from noble Lords in today’s debate.
The Bill would result in CHIS capability being diminished and vital intelligence and investigative leads being lost. At the same time, the public would be less safe from the most serious threats we face. It is for these reasons that I find the Bill troubling, and it is likely that the Government will seek to block it when it reaches the other place.
Baroness Hamwee (LD)
My Lords, I am very grateful to all noble Lords who have taken part in this debate. An objective of a Private Member’s Bill is to get the Government to think again about the issue, not about the words used by amateurs like me. [Laughter.] I am not sure how to take that laugh. I hope that, in that spirit, the Government will consider the substance of what has been said today. We are still awaiting the outcome of the inquiry, but that does not mean that the issue will go away; nor does the fact that it has been referred to in historical terms mean that it should not be addressed. It should be dealt with by the Government, and I would be very happy if they produced a Bill to do so; or, as a second option, to deal with what has so neatly been referred to as “deeply unsatisfactory” guidance on the part of the College of Policing. It is clear that there is scope to improve that, as the noble and learned Lord said. For me, this has always been an ethical issue, to which the law should respond—ethical before legal.
I have one other specific point. I am quite deliberately not referring to noble Lords individually, because otherwise people feel that they have been left out, and I do not want to take up the time of the House by running through everyone. Some of the wording to which the noble Lord, Lord Davies, referred was taken directly from the College of Policing guidance, in particular the words encountered during deployment.
I have at least the Minister’s encouragement that the Government will not block the Bill going to Committee in this House. There will be opportunities to deal with matters of definition and interpretation of existing legislation, and I appreciate the care that noble Lords have taken to address those issues. Therefore, without taking more of the House’s time—I am aware of the business to come—I beg to move.