Conduct of Undercover Policing and Surveillance Operatives Bill [HL]

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.

“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.

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.

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.

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.

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.