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Lord Jenkins of Hillhead: My Lords, I hope that the noble Baroness will permit me to finish. I beg of noble Lords on the Labour Benches then to vote for our amendment and not to let the Government get away with it and to allow the measure to slip through due to a lack of co-ordination. I believe that that would be tragic as regards the merits of this issue. It would also be symbolically damaging to relations between the two parties. I beg Labour noble Lords to do what I shall do; namely, to be ecumenical and each vote for the other.
Baroness Blatch: My Lords, my understanding on advice from the Clerks of the House is that the amendment of the noble Lord, Lord Rodgers, does not fall if the amendment of the noble Lord, Lord McIntosh, were accepted. It is not a consequential amendment, as the noble Lord, Lord McIntosh, pointed out. The amendment does not fall. It is technically possible for this House to vote for both amendments.
Lord Jenkins of Hillhead: My Lords, I am grateful to the noble Baroness for that expository and helpful intervention. Therefore, if the Labour amendment is
carried, let us still vote for the amendment of my noble friend. Let us sort matters out afterwards. We will have struck a blow, indeed, two important blows. I would be prepared either to discuss what is decided or, better still, to put it to arbitration. We have the most eminent arbitrators in the country here. I should be happy to put the matter to arbitration conducted by the noble and learned Lords, Lord Lloyd and Lord Browne-Wilkinson, or the noble and learned Lord, Lord Bingham, if he desired that. In any event, let us not snarl ourselves up. I shall vote for the Labour amendment, and I hope that Labour Members will vote for ours.
Baroness Carnegy of Lour: My Lords, the noble Lord has not quite sat down. I may have misunderstood this matter, but I thought that the noble Lord, Lord Rodgers, said that the Labour amendment did not involve prior consent to the police, and that when an emergency arose the Labour amendment implied that the police did not need prior consent. Is that what the noble Lord, Lord Rodgers, said?
Lord Jenkins of Hillhead: My Lords, as I understand it, the Labour amendment--this is one of its deficiencies--does not in all circumstances require prior approval.
Lord Walton of Detchant: My Lords, I hesitate to intervene in this debate in which we have heard such a series of eloquent speeches from members of the legal profession and from three former distinguished Home Secretaries. However, it will not have escaped the notice of those who read the correspondence columns of The Times that this Bill is a cause of serious concern to the medical profession. The problem is the following. On the face of it, this Bill would allow a senior police officer to give authority to carry out surveillance on a doctor's premises without that doctor's consent, and to have access to confidential medical records.
Confidentiality lies at the heart of the doctor/patient relationship. Indeed, a doctor who can be accused and found guilty of breach of confidentiality relating to a medical consultation without consent can be called before the General Medical Council, disciplined, and in the last resort could be erased from the medical register.
Confidentiality between doctor and patient in this country, however, is not as rigid as it is in France where, under the Code Napoleon, for example, it is virtually absolute. It does not have the same protection in law as does the consultation between a lawyer and his or her client, because no privilege attaches to consultations between doctor and patient in law in this country.
As a result of concerns in a number of situations, some years ago the General Medical Council introduced, in its guidance to the profession, a number of circumstances in which it was proper that such confidentiality might be breached. For example, if a patient suffering from intractable epileptic attacks refuses to accept the doctor's advice to give up driving, then it is the doctor's duty, after telling the patient that he will do so, to report that individual to the licensing authority.
In 1983, when I was President of the General Medical Council, I and a number of colleagues had consultations with the then Home Secretary, Mr. William Whitelaw, now the noble Viscount, Lord Whitelaw, over the issues and provisions of the Police and Criminal Evidence Bill. We agreed at that time to recommend to the medical profession that it was proper to breach confidentiality to assist the police in the investigation of a grave or very serious crime. That advice still stands.
Can you envisage a situation where a doctor, being aware that he or she may be having a consultation with an alleged criminal, and having been informed by the police that this is likely, gives permission to the police to bug that consultation? How can it be ascertained that that consultation, and that consultation only, will be recorded by the intrusive surveillance of the police? How can one avoid the situation, for example, where the next consultation in that surgery which is now being bugged, is between the doctor and a 14 year-old girl who is seeking the doctor's advice about abortion? Let us suppose that the officer who is monitoring that surveillance happens to be the father of that particular girl who is seeking the doctor's advice. Of course, the consultation under surveillance is confidential, but if, naturally as a parent, that police officer then goes dashing along to the doctor's surgery and asks him what business he or she had in discussing this issue with his daughter, is that doctor then to be brought before the General Medical Council for breach of confidentiality in that medical consultation?
How can we ascertain or ensure that surveillance is limited to surveillance of transactions or consultations between a doctor and the putative criminal? Of course, I accept wholly that there will be circumstances--exceptional circumstances--in which a doctor may be thought to be dealing in inappropriate or excessive prescribing of dangerous drugs, and the doctor may therefore have to come under surveillance. I wholly understand the reasons why this Bill is now being debated.
On the question of the protection of medical confidentiality, the profession as a whole would much prefer that no such provisions for surveillance of medical consultations were necessary, and in an era of universal trust they would not be, but I accept the need for the police to have these powers. We wish in medicine that such would never be needed in our society, but they will be needed and it is crucial that the medical profession should, therefore, do its best to collaborate with the police and the authorities to enable them to investigate grave or serious crime, as the General Medical Council recommends.
Surely, that is something which should not be subject to the authority solely of a senior police officer. Surely, it is something which must, at the end of the day, be subject to judicial agreement.
5.45 p.m.
Lord Campbell of Alloway: My Lords, on the question of voting may I put in a respectful plea for a measure of sanity? We are grateful to the noble Lord, Lord McIntosh of Haringey, as I am sure the whole
House is, for his objective introduction. He truly described the fundamental and crucial distinction between the Labour amendments, if I may call them that, and the Liberal amendments. The main objection, as I see it, to the Labour amendments is a question of accountability, of the police revising their own decision, whereas the main objection to the Liberal amendments is the question of the security of the material which is used in the authorisation. They are two wholly distinct types of objection. Of course, if any party, as a matter of tactics, wants to vote with another party there is nothing one can do about it. Everybody can do what they like, but will that be seen as a rational exercise? I ask your Lordships to consider how this may be seen outside this House.I shall be brief because by this time all the main arguments have been raised and discussed. The issue is a narrow one, as accepted by at least four of the noble Lords who have spoken. The Government's amendments propose judicial scrutiny. The Liberal amendments propose judicial authorisation. That is the difference.
Your Lordships may think that on objective examination the extent to which there is erosion of the common law is justified in the public interest to enable a requisite system of surveillance to operate, and operate speedily and effectively a system which cannot operate without maximum security. The Government amendments propose that a number of former and/or serving High Court judges should be established as a panel so that one might serve as a commissioner to review authorisations, and investigate complaints. The commissioner has effective powers of sanction. He may require a chief constable to justify his decision under cross-examination, albeit under some special court procedure devised to ensure that sensitive information is not allowed to enter the public domain without sanction of the High Court judge.
The point about medical confidentiality is important. I take on board what has been said by the noble Lord that authorisations under the Government amendments will be notified to the commissioner as soon as possible, and in many cases, including legal confidentiality, medical confidentiality and journalistic confidentiality, they must be notified within 48 hours. That may not be wholly sufficient, and it may not be wholly adequate, but it goes some way towards meeting the point made by the noble Lord. The commissioner may quash an authorisation and order destruction of the material.
As to the Labour proposals, they are very near. There is not a wide difference between them. I think the noble Lord used the term that there is an overlap between the Labour proposals and the Government proposals. The objection is that the commissioner would be both authorising and investigating complaints arising from the authorisations. Your Lordships may think it prudent--this was the point made by the noble Lord, Lord Marsh, with whose analysis I so much agree--in these days to rely upon the opinion of more than one chief constable, which supports the Government's proposals as requisite to combat serious crime.
The essence of choice among the amendments is of an importance which greatly transcends any political affiliation. That is one of the reasons, with respect, why I sought to ask your Lordships to consider the effect of a nonsensical voting exercise. It is not a political matter, even as we approach the hustings. I support the Government's amendments because, as I see it, they afford a maximum security without which this system, which it is common ground is needed, would be inhibited or could not work at all. I am prepared, like the noble Lord, Lord Marsh, to defer to the apolitical advice of the chief constables.
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