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Lord McIntosh of Haringey: My Lords, there is nothing between us on the substance of the amendments. The Minister has made up handsomely for the failure of her office to inform her adequately about the recommendations of the Delegated Powers Scrutiny Committee which caused so much difficulty at Committee stage.

I am very ready to accept that her amendments are better drafted than mine. I am very ready to accept that they achieve the same result. I am very ready to accept that they achieve the result that would have been wished by the Delegated Powers Scrutiny Committee. It said that the additional procedural safeguards needed were provisions in the Bill for consultation about the contents of the code and for subjecting the code when it is laid before Parliament to the affirmative resolution procedure.

I wish that that could have been accepted at the beginning of our debates. As the Delegated Powers Scrutiny Committee said, there are perfectly good

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precedents in the Police and Criminal Evidence Act 1984 and, most recently, in the Criminal Injuries Compensation Act 1995. Without being threatening, I hope that we shall not go through this issue again.

Lord Campbell of Alloway: My Lords, as I set the ball rolling on Second Reading, I really do wish to express my gratitude to my noble friend the Minister, who has kept an open mind in a difficult situation and has come to the correct conclusion.

Lord Rodgers of Quarry Bank: My Lords, having listened to our debate this afternoon when goodwill has been flowing like milk and honey from the noble Lord, Lord McIntosh, to the Minister and back, I wonder whether the Bill might have been better dealt with from the beginning by correspondence. It was difficult to make progress on the second day of the Committee stage. However, a great deal of progress has been made since that time. I wish to pay tribute to the Minister, as indeed did the noble Lord, Lord McIntosh, earlier, for the helpful correspondence to which I have had access during that period.

Whatever arguments one may have had at any stage of the Bill, in particular at Committee stage, the paperwork in relation to the Bill has been excellent in terms both of correspondence from the Minister and of other work in the department. I am aware that I may have added my name to the amendment after the Minister had conceded the principle in her letter of 17th January. However, I have no regret at having done so. In some ways this is the most important issue that we are discussing today. Had the Minister not come forward helpfully with her amendments, I hope that the noble Lord, Lord McIntosh, would have pressed his amendment to a Division.

Looking back at our rather uncomfortable discussion at what turned out to be a non-event in Committee, the House and the Minister will remember that I was among those who pressed hard for the Minister to say whether the draft code represented the policy of Her Majesty's Government--in other words, that it was the view of the Government at that stage. It seemed important to know, if we were to discuss many of the amendments to the code in the name of the noble Lord, Lord McIntosh, among others, whether or not those amendments were to be pressed to a Division.

At that time the Minister was not able to be as specific as in her letter of 17th January, in which she made clear that the draft did indeed represent the Government's view of what its provisions ought to be. That was a helpful statement. We on these Benches, among others, fully recognise that a document may be made available for consultation or modified in the light of that consultation. However, until it is modified--until the Government have considered representations and changed their minds--it represents the policies of Her Majesty's Government. Thus the amendments taken together now get the balance right.

One of my anxieties in Committee concerned the fact that over the past 20 or 30 years there has been a great deal more consultation with outside bodies. That is

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absolutely right. It is also right that consultation should have taken place over the code of practice and that there should be further consultation in future. However, it is important that if there is such consultation it does not usurp the proper role of Parliament. When we discussed the point on the last occasion, I felt that whatever consultation there had been and might be, Parliament would not have a proper opportunity--both because of the way in which the Minister felt she had to deal with the amendments and because the order would be subject to negative resolution--to consider the important provisions of the code. However, all that anxiety has been removed and again I express my thanks to the Minister and support her amendments.

On Question, amendment agreed to.

[Amendments Nos. 75 to 77 not moved.]

Clause 19 [Effect of code]:

[Amendment No. 78 not moved.]

[Amendment No. 79 had been withdrawn from the Marshalled List.]

[Amendments Nos. 80 and 81 not moved.]

5.30 p.m.

Lord Rodgers of Quarry Bank moved Amendment No. 82:

Page 12, line 30, at end insert--
("( ) Nothing in this section shall affect registered medical practitioners.").

The noble Lord said: My Lords, in the course of Second Reading I drew attention to an anxiety expressed by the British Medical Association about the status of police surgeons and the extent to which their role might be prejudiced by the Bill. On 14th December the Minister replied to me, explaining the extent to which she was clear that that would not be the case. At the same time she made a number of appropriate points about the Bill. Her letter stated:

    "If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other notes which are subject to confidentiality".
That went to the heart of the point about the dual responsibility of a police surgeon to the police and at the same time to his patients in every other respect. Following the Second Reading debate, the Minister wrote to me on 14th December and, had events not moved in the way that they did, I had intended to raise the point during Committee stage. Be that as it may, I did not do so. I am aware that discussions have taken place between the BMA and the Home Office and certain assurances have been given.

It was the traditional practice for the police surgeon to provide a statement for the police with the consent of the individual, giving only the forensic evidence obtained. However, the cause of our anxiety is that recently the police and the Crown Prosecution Service have been requiring a copy of the police surgeon's handwritten notes which include the patient's past medical history, as well as therapeutic information which the patient or the victim of the crime had given for treatment purposes. The disclosure of such

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information is a breach of the rules of the General Medical Council which allow disclosure to the police only when there is an overriding public interest or if ordered by a court to do so.

The amendment is not so much a probing amendment as one which gives the Minister an opportunity to put on the parliamentary record in the Official Report the views that she has previously expressed to me and any other considerations which she thinks may be germane to an understanding of the issue. It may well be that at a later stage it would be right to press an amendment, perhaps in another place. However, at this stage I simply ask the Minister to comment on the amendment as it stands. I beg to move.

Baroness Blatch: My Lords, I hope that I shall be able to give the noble Lord, Lord Rodgers, the reassurance he seeks about the effect of the Bill on the disclosure of material by registered medical practitioners who act as police surgeons.

Before responding to the amendment, I ought to say that the noble Lord, Lord Walton of Detchant, is not in his place today. He wanted very much to be present but his absence from the Chamber is unavoidable. He took a close interest in the effect of the disclosure regime on registered medical practitioners. We have corresponded about the issue and I believe he would have been reassured by what I shall say in response to the noble Lord, Lord Rodgers.

The current disclosure requirements derive from a series of judicial decisions in recent cases, including the case of Judith Ward. Although there is room for interpretation, it appears that the duty of disclosure owed by the prosecution extends to almost all material generated not only by the prosecutor but by anyone who has assisted with the prosecution, including police surgeons. This is what lies behind the request of the Crown Prosecution Service for all the notes made by police surgeons when examining suspects. I can understand the difficulties which the current law causes for doctors who owe a duty of confidentiality to their patients and who have previously provided forensic statements only.

In our view, the Criminal Procedure and Investigations Bill resolves the difficulty. This is because it abolishes the common law rules relating to prosecution disclosure (except those relating to whether disclosure is in the public interest), and imposes disclosure duties on a narrower range of persons and organisations than those currently included in the concept of the prosecution team. The disclosure requirements in Part I do not affect doctors, including police surgeons, because they are not prosecutors. Part II may affect them, but only if a police surgeon is a person charged with a duty of conducting an investigation as defined in Clause 19, which requires such persons to have regard to the relevant provisions of the code of practice prepared for the police under Part II.

If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other

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notes which are subject to confidentiality. I agree that the difficulty they now face needs to be resolved in some way.

However, in our view, a police surgeon is not an investigator for the purposes of Clause 19. Police surgeons have no statutory position within police forces, and they are under no statutory duty, under the Police and Criminal Evidence Act 1984 or elsewhere, to conduct investigations of the kind described in the Bill. On this basis, a police surgeon would be in the same position as any other third party who may have information which may be relevant to a criminal investigation, and would be under no duty arising from this Bill to retain material and reveal it to the investigator or prosecutor. The reports they prepare for the purposes of criminal proceedings would be given to the police and would be subject to the requirements of this Bill relating to disclosure. The other material they generate, which is concerned with the doctor-patient relationship, would be protected.

In the light of that explanation, I hope that the noble Lord will withdraw his amendment.

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