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Dr. Julian Lewis: Before my hon. Friend finishes his speech, may I say that if there is a Division on new clause 1, he and I will find ourselves in opposing Lobbies for the first time in the seven years that we have both been in the House? There is no reason, however, why someone with my views cannot totally support what he says about new clause 5. The question of keeping organs in a fit state to be transplanted, once the necessary consents have been obtained, is entirely separate from the question of presumed consent. I assume that he would accept that.

Mr. Swayne: My hon. Friend is right that I differ from his judgment on anything only rarely. We will certainly be in different Lobbies tonight, but I entirely accept what he said in his words of support for new clause 5.

Mr. Christopher Chope (Christchurch) (Con): Before my hon. Friend finishes, will he comment on why the Government seem to have been so reluctant to accept this proposal? Does he share the frustration of Mr. Curry that the Government have not answered the questions that he raised in correspondence with them?
 
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Mr. Swayne: My hon. Friend is right. I have raised the issue on several occasions over the last five years both from the Front Bench as a Conservative health spokesman and from the Back Benches as I do now, but I have never had a satisfactory answer. Ministers have tended to say that it will become unnecessary, if it is not already unnecessary, because of the advances in science and the ability to gain organs from non heart-beating donors, but I simply do not believe that. I accept that there is some opposition on grounds of the competition for respirators, for example, in hospital intensive care units. However, I believe that that is a matter for clinicians, not Ministers.

In summary, we had a system that doubled the number of transplants when it was used. An interpretation of the common law brought about circumstances in which it had to be discontinued. It seems to me that we have a perfect opportunity to put that right tonight and I cannot imagine why we should not take it.

Ian Lucas: We all accept that this is an extremely difficult and contentious issue. We have had an illuminating debate about it, but the balance of contributions has focused on the rights of those who are awaiting treatment. We all accept that they are in an invidious position and we all want to do as much as possible to assist them. I have to say that if, two years ago, I had been asked to vote on this particular issue, I might well have voted differently from how I intend to vote this evening.

I believe that we have not concentrated enough on the rights of those who are left behind. I want to say a few words about the relatives of those who may lose people very close to them. It is important to consider the backcloth to the legislation. In respect of the new clause, we have not considered it enough. The Human Tissue Bill was introduced in response to the Alder Hey and Bristol royal infirmary cases, which involved individual rights being ignored by people in authority. The Bill is fundamentally about ensuring that those terrible events do not recur. When we vote this evening, we need to reflect on the fact that we are operating against a backcloth of enhancing individual rights against abuse.

Some constituents who came to see me to talk about the Bill particularly influenced me. They were bereaved some 30 years ago, but were no less bereaved on account of the length of time that had passed. They had never been to see their MP before, but they told me about their children. I accept the fact that the Bill does not relate specifically to children, but my constituents' views are relevant to our debate. They told me how their rights had been disregarded and their views overridden by people in authority who had not listened to what they had to say. I cannot accept that the introduction of a doctrine of presumed consent sits correctly with the backcloth that I have described.

David Taylor: I am very sympathetic to my hon. Friend's position, having been a bereaved parent myself some 27 years ago, but is it not the case that the new clause introduces presumed consent for transplantation use, not retention for research? Surely there is a huge difference between the two.
 
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Ian Lucas: That was not a difference that my constituents raised with me. They were suspicious of authority and of people with authority. I believe that they have the right to be so suspicious because of the way in which individuals in authority had treated them.

What disturbs me most is the provision in new clause 3(5), according to which someone in authority has the power to make a judgment about individuals who have just been bereaved. The person in authority has the right to assess whether a particular individual is suffering "significant distress"—not "distress", but "significant distress". With the best will in the world, how can it be right and proper for any doctor—or, indeed, anyone—to make an assessment that the distress caused by bereavement is not "significant" enough to allow the bereaved relatives to prevent organs from being used?

Dr. Julian Lewis: Does the hon. Gentleman accept that there are further complications on that point? What if people have religious objections to their relatives' organs being used in that way? Would such objections be regarded as "significant distress"? What about the Muslim community, Jehovah's Witnesses or people who belong to minority groups, for example? Would the distress caused by offending religious beliefs be "significant" enough to overrule people's views?

Ian Lucas: The hon. Gentleman makes a valid point. As a lawyer, the words "significant distress" immediately rang my alarm bells. I can see applications for injunctions being made, and litigation becoming rampant in this field. Judges could be called out of bed at all hours to take life-or-death decisions, which would make the process of bereavement even more painful than it is now.

Dr. Evan Harris: If anyone were at the point of calling lawyers, it would be accepted under the regulations as evidence of people reacting under "significant distress". [Interruption.] It is quite clear what significant distress is, and that is above the threshold. In the case of Jehovah's Witnesses, there are several safeguards. There is the opportunity for the individual to opt out; there is the opportunity to tell relatives that someone is a Jehovah's Witness; and if someone is not a Jehovah's Witness, relatives who are Jehovah's Witnesses still have the opportunity to make the point that they would be significantly distressed, even though doing so would deny a recipient who is not a Jehovah's Witness the opportunity of receiving the organ from someone else who may not be a Jehovah's Witness. Nevertheless, that is the safeguard in the new clause. It should, I hope, meet the hon. Gentleman's concerns.

Ian Lucas: I am afraid that it does not meet my concerns at all. In my view, the phrase "significant distress" can create the invidious position whereby someone in a position of authority overrides the rights of people who have to cope with bereavement for the rest of their lives. I say again that the legislation should be about protecting individuals against people who abuse their position. The new clause is not an appropriate way of amending the Bill.

Rob Marris: Peter Cox died in 1989. He was aged 24. He had a brain tumour. His parents, my constituents
 
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Rosemary and John Cox, have tirelessly campaigned on this issue since. I have met them many times and discussed the issue with them. I have little doubt that they will be watching our debate today with interest.

6.30 pm

The hon. Member for New Forest, East (Dr. Lewis) asked whether there was a national register of some sort. One of the reasons the NHS organ donor register exists is the work of Rosemary and John Cox. In the five years after their son died, they campaigned for such a register. When Peter died, they found that there was a register of those waiting for organ transplants, but no national register of those who had opted into organ donation. It took five years to get one set up, which is a relatively short time in today's society. The register was set up in 1994 and is based in Bristol, as my hon. Friend the Member for Dartford (Dr. Stoate) said. I pay tribute to the work of Rosemary and John Cox, but I suspect that I will disappoint them today by the way in which I vote or abstain on the new clauses.

This debate has addressed a difficult moral issue. I do not have a pager, so I do not know if it is true that the Government will subject Labour Back Benchers to a three-line Whip on the issue. If that is the case, I will need some convincing arguments from my hon. Friend the Minister. I see that my right hon. Friend the Secretary of State for Health has joined us. I would be interested to hear the Government's arguments on why the vote should be subject to a three-line Whip.

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