Conduct of Undercover Policing and Surveillance Operatives Bill [HL]

Lord Garnier Excerpts

2nd reading
Friday 17th July 2026 Lords Chamber

[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.