Victims and Prisoners Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My only final point is to say that the term “parental alienation” has become problematic on both sides. It seems to me that one side can use the term “parental alienation” in the way that has been described—I have made the point that the term is used in the amendment—and another side can basically say that anyone who uses the term “parental alienation” does not understand the problems of victims of domestic violence, which is usually the accusation, as is that they are on the side of men’s rights campaigners. I am not saying any of that. I want some clarification on one amendment only of this very big group, because it is unhelpful to put it in the law.

[Baroness Chakrabarti (Lab)]

I will briefly respond to the noble Baroness. I thank the noble Baroness, Lady Fox, for her constructive engagement and for everything she has said. I will respond on that specific amendment. I understand where she is coming from.

Perhaps I did not put it very well, but what I was trying to articulate before is that I fully accept, as a fact of life, that marital breakdown will, sadly, sometimes —maybe even often—create a rancour that can be passed on to the children. The children can be caught in the middle, and they may feel that they are pulled in two directions, or perhaps in one direction more than the other; it does not matter. That is a fact of life. It is a matter of evidence and fact that is not, in my view, a matter for medical experts, but a matter for the judge to deal with and cope with—I think the noble Baroness is slightly sympathetic to that point.

In many cases, it will be about encouraging the parties, whatever their pain, to reflect on their actions in the interests of the child. However, it does not require the kinds of sums of money and the sorts of diagnoses that the noble Baroness, Lady Brinton, was talking about. It has to be said again that we are often talking about some very wealthy men; it need not be, but it is usually men. These are some very wealthy individuals who pay some very expensive, slightly dodgy—and if the noble Lord, Lord Russell, can use the “B” word, I can use “dodgy”—experts, whose expertise I would query, but whose greed I would not.

I can always reflect on drafting; that is what Committee is about. Here, when we talk about being

“considered … as a potential perpetrator of parental alienation”—

as opposed to simply saying bad things to their kids about the other party—we are talking about this syndrome. That is what I was trying to reflect. As for the fact that they should not be diagnosed or considered for diagnosis for 90 days for this syndrome, frankly, if they are a victim of abuse, it is almost inevitable that they are going to have some rancour or anger towards the other partner, unless they are a saint. Judges are well capable of considering that and working out what to do on the facts.

It is really about attempting to separate facts from expert evidence. These are hard facts that judges can deal with, with other court reports. This so-called “alienation expertise”, that some of us believe has become a bit of a racket, is being weaponised against victims. If there is something in the clarity of the drafting that can be improved, that is the great benefit of Committee, but I am trying to respond with the intention behind my amendment. I am very grateful for the opportunity to do that, raised by the noble Baroness, Lady Fox.

Illegal Migration Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

Having no qualms is something that I would never do, but I am also suggesting that having qualms, or using those qualms, to undermine what the British public would like to do is something that other people should have qualms about. I think that people are tearing their hair out outside of here being told, “You cannot do that; you may have voted for that, but that cannot happen”. When international treaties are used in that instrumental way—which is the way I think they are being used—that is difficult.

May I ask noble Lords to put aside the specifics of this Bill just for one moment? I know that people are very emotional about this Bill, but what if, on another topic, the UK Government—perhaps another Government, not this one, whom more people in this House might be sympathetic to—brought in a different Bill? Just imagine if such a worthy Government, with a popular mandate, tried to bring in a radical, novel, innovative law; for example, enhancing workers’ rights or improving women’s reproductive rights—things that I would support. Just imagine if that Government tried to bring that Bill in and it got to the Lords, where they were told, “You cannot do that because there are all sorts of international treaty clauses that prohibit you doing it”. Imagine your frustration: would you break your promise to the electorate in that instance? I just want us to acknowledge that asking the Government to break a promise on the small boats—

[Baroness Chakrabarti (Lab)]

Would the noble Baroness like to remind the Committee which limb of the constitution takes responsibility for negotiating and revising treaties on the world stage? Is it the judiciary? Are they the wicked people who run off, committing us to all these international obligations? Is it parliamentarians who go and negotiate these instruments that she is finding instrumental, or is it the Government who negotiate, renegotiate and, in some cases, even walk out of international obligations?

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I do not think there are evil people involved in this and I have not gone down the moral/immoral route. I am concerned, genuinely, with ensuring that the electorate and citizens of this country do not feel that parliamentary discussion uses international treaties as an excuse to not do what they anticipate that Parliament was asked to do. For example, this could be about the abolition of the Vagrancy Act. Let us be honest; a lot of promises have been broken recently. I have heard excuses made for why we have not yet abolished that Act. I have heard excuses for why we can no longer get rid of tuition fees, and for why leasehold will not be abolished—

Prisons: Education

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Thursday 23rd March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords—

Strikes (Minimum Service Levels) Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Committee stage
Thursday 9th March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am surprised that anybody has been able to check whether the Bill is compliant with human rights legislation, because there is nothing in the Bill. I try very hard to read the legislation that comes before us, but I cannot always do it because I have tomes and, as I am not in a party, I have no one to outsource it to. However, I did not have much trouble with this Bill, because there is nothing in it—and, in a way, that is the problem. So although I am not keen on human rights legislation, I disagree with the noble Baroness, Lady Chakrabarti, that this is some big conspiracy against human rights legislation. But I cannot tell what I think about the Bill in relation to that point.

If we forget the human rights aspect, the problem with the skeletal nature of the Bill is that employment rights are important to millions of people in this country, and they were long and hard fought for. If there is a risk of their being taken away, we are not all just going to sit here and say, “Well, we will trust you, even though you haven’t written it in the Bill”.

I have so many questions. At Second Reading, the Minister stressed that a process of consultation would be required before regulations on maintaining

“minimum service levels are introduced”.—[Official Report, 21/2/23; col. 1640.]

But with whom are they consulting? The fact is that we are discussing minimum services and we do not know what the minimum services are. Is it 90% or 50% of services? Will it be different for different services? It is inevitable that this will make it open to conspiratorial questions; people will ask, “What are they up to?”

All the time, I just keep thinking that the consequence of this is that overstretched public services will have to assess these minimum services, which I think will waste endless amounts of their time when we have a crisis of public services. Named individuals may be persuaded to vote for strike action—it is perfectly within their right to persuade them, if there is an argument as to whether they will go on strike or not—and decide to go on strike, which is quite a big decision to make, but then they are named by their employer as somebody who has to strike-break and cross a picket line. If you refuse to do that, you jeopardise everybody else’s employment rights and get the union sued, so you can understand that concern. As an aside, strike-breaking and crossing picket lines is a point of principle that some of us we will not defy; it is a big deal for us. I wanted to make that one bit of clarification.

I just do not know why we need the Bill, and there is nothing in the Bill to tell me why we need the Bill, because—and I think this relates to some of the points made in the Opposition Front Bench’s opening speech—is it not the case that many of the sectors mentioned in the Bill already have their own minimum service requirements? They are often voluntary, but sometimes not. Only in 2019, in the Queen’s Speech, we were told that we needed a Bill to ensure that people could depend on their transport networks; they were trying to legislate on minimum service in transport. At the time, I wondered why they were picking on transport workers, but the point was that they felt it was so important that they had to mention transport. However, now they are just throwing in everybody else. So it has changed from having any kind of democratic requirement; that would imply that this is because more people have gone on strike, but the Bill comes across as a Bill to stop strikes, and, surely, that is one of its problems.

We have the Fire and Rescue Services Act 2004, which allows the Secretary of State to provide and to maintain services and facilities in fire and rescue situations. That was given to him, and, while I did not agree with it, he has that legislation. In the education sector, there are various statutory duties on schools regarding the safeguarding and supervision of children and so on.

Do not get me wrong, I do not agree with all the strikes that have been called recently—I am not in those unions, and I might argue against them—but that is not the point; the point is that we are talking about fundamental rights. They are not human rights; they are long-established employment rights, and the Bill does not tell us which ones are being taken away. It will inevitably cast the Government as people who are indifferent to workers’ rights. I have defended the Government on the Retained EU Law Bill when people have said that they are using it to smash workers’ rights; in response, I have said, “Don’t be so conspiratorial”. I am not helped in defending the Government on that when they bring this Bill forward which is about attacking workers’ rights.

[Baroness Chakrabarti (Lab)]

I will respond, briefly, to the noble Baroness, and I am grateful to her for her ability to disagree well. First, I point out that many of the fundamental employment rights that she holds so dear are actually human rights, and they are set out in international conventions and the covenants of the Churchill settlement. If she does not like the word “human”, she does not have to use it, but these rights are, as a matter of law, international human rights.

Secondly, again, I know that she does not like our human rights settlement or the Human Rights Act, but in our public law in this country, not just under the Human Rights Act, one of the main benefits to the Government of putting the policy neat in primary legislation and not leaving it all to regulations is that regulations—to respond again to the noble Baroness, Lady Noakes—may be struck down in the courts in ways which primary legislation may not.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I really welcome the contributions of the noble Lords, Lord Sikka and Lord Moylan, on their amendments, because this issue of money is important and it is a good way of getting the discussion going—or not just to discuss for the sake of it.

What I cannot get my head around is how in any way you can legislate on this. I cannot see a way of doing it, even though I think I have added my name to one of the amendments. But it is important to discuss this. As I listened to the noble Lord, Lord Sikka, I thought he made a very strong case for the problem of corporate funding of research if it distorts outcomes. Nobody wants that, but I do not necessarily know that I do not want any corporate funding of research—so the question is how you deal with it.

It is also the case that, these days, some of the big players in terms of funding are charities or NGOs. We mentioned the Wellcome Trust, which I worked with for many years. It is true that the Wellcome Trust would often say, “These are our priorities this year” and you knew that, if you wanted a Wellcome Trust grant, you had to fit your research into those priorities. That had a distorting impact—I am not suggesting it was corrupt in any way, but you knew that was the way that you would get the money. I certainly know people who shifted their focus in order to get the grants.

This is important in terms of academic freedom. I wonder if the popularity of politicians saying, “The evidence shows”, and evidence-based policy being fashionable incentivise a tendency towards politicised research outcomes. There is a sense in which a lot of academics have wanted to be in on the policy discussion, often with outcomes predetermined. There have been times when I have said to Ministers, “Where’s the evidence for that?”, and they have said, “We have commissioned the evidence”—but they were announcing the policy. Do not tell me that it has not happened before because it happens all the time. They have commissioned the evidence from a university, in fact. I am just saying.

The reason why I think it is important that research is completely separate from that is because there is a place where academic freedom is under the surface and genuinely under threat, although I do not know whether the law can change that. I know of two people who put in for research on detransitioning—to raise that issue—and they were told there was just not a cat in hell’s chance of getting any funding for that because it was going to be too controversial. Whether we like it or not, the broad problems around some of the other issues in terms of what you can and cannot look at are affecting what is funded in terms of research, particularly postgrad research. There are a lot of complaints about that when you meet postgraduates.

By the way, that does not mean I do not appreciate what the noble Lord, Lord Stevens, said. It is also the case that people can for ever more moan that they are not getting their research funded when it is actually no good, and that actually, you do want academic judgment. I am just pointing out that politics enters into it.

The one thing that I am really concerned about is that UKRI, which after all distributes billions of pounds of research money, produced a draft equality, diversity and inclusion strategy—my favourite topic—earlier in the year, in January, which is a cataclysm of management-speak and right-on political outlooks. You could write it; you know exactly what it is going to say and do. A lot of it is about its staff, which is fine. I have no objection to that. But I worry when it starts basically to express its political aims. You have to question its impartiality.

As far as I am concerned, in the sciences the money should be given to the best science that advances knowledge; it is not humanities research, which is likely to give us interesting insights, and so on. But UKRI demands of people that apply for it that they deliver on the diversity and equality outcomes. A lot of people who read that immediately thought, “How do I prove that?” That is a layer of work that you have to do that you do not need to do. The document sounds quite threatening: “If you don’t tell us when you apply for this that you’re going to deliver on these things, you won’t get it.” So great science is sidelined in the name of equality, diversity and inclusion. That is something that we have to watch. I do not know if the Bill can do anything. I am hoping it will create a climate of discussion about the importance of academic freedom that will counter some of these trends and some of the secret censorship that goes on behind the scenes.

[Baroness Chakrabarti (Lab)]

My Lords, like the noble Baroness, Lady Smith of Newnham, I would be grateful for guidance from someone as to how often one is to redeclare interests in the course of Committee. Should one do it in every group that one speaks on? I am sure there is an answer and that this is just my ignorance. I gather that it is once, but is it once a day or once in Committee in total? I have done it today.

Nationality and Borders Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I feel profoundly uncomfortable with Clause 11, and I am very tempted to vote for it to be completely removed. But I wanted to listen to the debate, and I am afraid that the people who have argued for the removal of Clause 11 have given me pause for thought, which was not what I expected to happen when I arrived. The reason is the way that this discussion has taken a particular form politically.

I am somebody who voted to leave the EU from the left—in the Tony Benn tradition—and I have historically been liberal on immigration. I have fought on many anti-deportation campaigns, and I am not somebody who thinks that one should close the borders. I am, more than anything else, a democrat; even in this House, I try to stay a democrat. I appreciated, with some irony, the comments of the noble Lord, Lord Horam, and the noble and learned Lord, Lord Clarke—Conservative remainers with whom, to be honest, I have not historically had a great deal in common but who raised some important issues that should inform this debate.

My concerns about Clause 11 were very well expressed by the right reverend Prelate the Bishop of Durham, who explained in great detail where I was finding difficulties with this. But I have a problem with the solution and the way in which this debate has been conducted. I think it is important to consider the British public’s opinion. It was interesting that a lot of people have asked us to walk in the footsteps of asylum seekers; I think empathy is hugely important and humane. But I also ask noble Lords to walk in the footsteps of the British public, who, if you ask them their opinion, do not all want hanging. Leadership is, broadly speaking, not the same as usurping their perfectly reasonable concerns.

What are their concerns? They are not that they do not meet any asylum seekers and, when they meet them, they change their minds; not that they lack generosity; not that they are xenophobic, mean spirited or narrow minded; and not that they want to close the borders and hate foreigners, as is often implied. Their concerns are that they would like control over the borders, which I think is a perfectly reasonable demand. A visceral illustration of a lack of control over the borders has been given to us by those arriving in boats, and we are all trying to untangle what to do about it as humanely as possible. That includes the British public, millions and millions of whom are incredibly generous of spirit towards all sorts of people and do not need lectures from here about how they have to open their hearts to people. They are full of heart-brimming generosity in all sorts of ways. Why do we have an issue here?

This is the bit that I cannot untangle. There are people who are seeking asylum legitimately, and one wants to welcome them. There are people trying to come to the country who are undoubtedly illegal immigrants, as anyone would understand them, but because there are very few ways to arrive as an economic immigrant, they may choose to describe themselves as asylum seekers. On a different set of amendments I will say that we should have more liberal immigration rules that would allow unskilled people to come as economic immigrants to this country.

We can see, and it is perfectly reasonable, that you cannot just say to people that everybody who arrives on a boat is obviously an asylum seeker, and that everybody who worries about them arriving must be a mean-spirited, horrible person who hates foreigners. That is my concern. I am trying to untangle that, because I genuinely do not know what to do. As I said, I would be liberal about economic migrants coming to the country, as much as I would about asylum seekers coming to the country, but I feel as though everyone is being forced to declare that they are asylum seekers because it is the only route in where you will not get kicked out. So I think that we are in a mess.

The Government need to answer this. What happened in relation to Brexit—for noble Lords who are interested in this—was not that people did not want any foreigners to come into the country but that they were told that freedom of movement was a non-negotiable international agreement that nobody could ever debate. So as democrats, people said, “Well, I live here; I’m a British citizen”—many of them from ethnic minorities, before anyone goes down the racist road—and they said, “Shouldn’t we be able to control who are British citizens who come here?” That is what happened. Other people said, “No, we can’t because we’re in the EU; we’ve got no choice”. So they got annoyed. My concern here is that if we say to the British public, “You either agree with us or you’re a xenophobe”, or, “You have to agree with us because we’ve got a refugee convention”—another international agreement from 1951, however good it is—“and it’s the only thing going; there’s no alternative”, that will also indicate that they have no democratic power.

I cannot understand why the Government keep trying to fit in what they are doing to the 1951 refugee convention, which, although one noble Lord described it as having been written in utmost liberality by British lawyers, was written by British lawyers—not by the British public. I want the laws to be written by the British public and for the British public, not just by lawyers—and in 2022, not necessarily referring back to 1951 all the time. I have no objection to that convention, but if it is not fit for purpose in 2022 to take control of our borders, the debate about immigration and asylum seekers will become toxic, if we just keep telling people that they cannot have this discussion. I believe I can convince my fellow citizens to be more liberal on immigration, but not when they are told that they cannot have the debate or that if they want to have the debate or to express worries about people arriving in boats, they must by their very nature be lacking in generosity and xenophobic. That is not the way to go. I am still likely to vote against Clause 11, by the way.

[Baroness Chakrabarti (Lab)]

My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.

It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.

I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.

Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.

The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.

I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.

Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.

On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.

The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

[Baroness Chakrabarti (Lab)]

I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

[Baroness Fox of Buckley (Non-Afl)]

Not me.

[Baroness Chakrabarti (Lab)]

—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.

I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Baroness Fox of Buckley

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.

It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.

Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.

So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very minded to support this series of amendments. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, explained, doctor-patient confidentiality is far more than a common-law obligation. It is an ethical duty in a relationship of trust. Will the Minister consider whether the public understand what this aspect of the Bill compromises of that confidentiality?

Our doctors know a lot about us: the most intimate physical details, sometimes our psychological weaknesses, sometimes our darkest fears about life and death matters. While it has been a long time since we offered uncritical deference to our doctors, as patients and at our most vulnerable we are not equal partners and we need to trust that relationship, despite the power imbalance. So it is understandable that the General Medical Council and the British Medical Association are rightly worried that the Bill will smash the principle of confidentiality to bits.

The issue of confidentiality and trust will appear later in Committee in some other amendments that I shall speak to later, but my main question here is: why is this part of the Bill necessary? I genuinely do not understand. People involved in medical practice understand that, while confidentiality is an important legal and ethical duty, it is not an absolute. As the noble Lord, Lord Carlile, explained, it may be that some doctors get the balance wrong, but doctors are already expected to share confidential information if it is in the public interest, and that includes serious crime. However, this is presently understood as the exception, not the rule. At the moment, doctors need to consider the specific circumstances of what to share to satisfy the intended purpose and when to share it, and they have to weigh up the benefits and harms of disclosure.

Doctors are asked and trusted to exercise their professional judgment and to strike a balance between individual and community rights. I, for one, want to continue to trust medical personnel to make such judgments in good faith. Is the Minister saying that the Government do not trust them on this? It feels like an attack on professional discretion that will undermine doctors in the eyes of the public. At the moment, with the medical profession being under so much pressure and scrutiny—anger over no face-to-face GP appointments, tragic backlogs in hospital treatments—there is already tension between the public and the medical profession. If it comes out that when you go to the doctor, the sacred bond of confidentiality could in fact be expected to be broken, that will be very damaging for no good purpose.