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Lord Walton of Detchant: My Lords, surely the amendment does nothing other than to support the existing authority and rules of the coroner and takes account of what changes may occur when the coroner's rules are amended. I did not think that it carried the implications that the Minister suggests it may.

Baroness Andrews: My Lords, the noble Lord is right. Indeed, the case I have made is that the coroner can do only what he has to do for the purpose of his function. The argument raised by the noble Baroness is that, essentially, we should consider whether in the context of the Bill we should give the coroner additional powers, in the sort of circumstances that she raises. We shall certainly continue the debate in the context of the coroners' rules. I am addressing in particular the European point in relation to the argument that the noble Baroness made on Article 2.

Baroness O'Neill of Bengarve: My Lords, I believe that one cannot really appeal here to the basic principle of consent, which we all agree is fundamental to the Bill. We all also agree that that principle is, and must be, limited by, in this case, public purposes—and hence, the powers of the coroner. This is an argument about the exact boundary to be drawn to those powers. Therefore, one cannot argue directly from consent to a particular solution. It is important to remember that tissues taken from all of us when we are alive are retained post mortem, and that is taken to be entirely acceptable. I am not certain why we should expect the coroner to be able to determine a limit to the retention confined to the process of his investigation, particularly when there may be very difficult questions to be answered about the circumstances of a death.

Baroness Andrews: My Lords, we are indeed talking about the boundaries of the coroner's power to retain, in this instance, blocks and slides. Our argument is that he has the power to do that in all appropriate circumstances. The case made by the noble Baroness, Lady Finlay, is that there will be instances, such as a case of sudden heart failure, that might put people within the category in which blocks and slides must be retained. That drives a bit of a coach and horses through the notion of the family's right to decide what to do with the body.

Having made the offer, as I did, to the noble Baroness, Lady Finlay, we do believe that the amendment cuts across important aspects of the Bill—namely, the consent of the family. We are sensitive to the situation that we are trying to address in the Bill as a whole. Therefore, I am reluctant to do anything that might compromise the consent principle in this context.
 
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Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for her reply and for having listened to the point that I made about Article 2. I should point out that sometimes the coroner does not even have a hearing. After a death is reported, a post mortem may be held and the case may be opened and closed without a hearing or inquest.

The criticism made specifically in relation to a cardiac death was that no specimens were taken from the coronary arteries. If they had been taken, the lack of care—when there was 95 per cent stenosis—would have been evident. It was much more difficult to prove inadequacies in care later on. The issue does not involve wholesale collections of specimens, as referred to in Article 8. The issue is one of some blocks and slides and specimens often no bigger than a fingernail clipping, which can be held in an archive so that they can be revisited later.

It is important that we recognise that the state has a responsibility to its citizens. When people in the care of the NHS die unexpectedly, there must be an ability to revisit blocks and slides as part of an investigation into systemic failures. When in custody, there must be an ability to prove wrongful conviction. The state must be able to revisit the complete record, including blocks and slides, if wrongful acquittal or failure to investigate is suspected. That is different from returning pieces of clothing, spectacles or other pieces accumulated by the police as evidence in a police investigation. We are talking about major failures here.

I can understand that the Government will wish to appease those who were wronged in Alder Hey and Bristol, but in this Bill they will leave future victims unprotected. This is a fundamental human rights issue: if the Bill passes as drafted, we will be allowing a breach of Article 2.

I was going to test the opinion of the House tonight, but in the light of the Minister's final comments I shall go away and have further discussions. However, I want to register now that I intend to return to the matter. If we do not ensure that we are compliant with human rights legislation, future generations will more than curse us for the inability to prove that they have been wrongfully handled by criminal justice or the healthcare system to which they entrusted their lives. With that caveat, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [The Human Tissue Authority]:

Lord Jenkin of Roding moved Amendment No. 29:

The noble Lord said: My Lords, the amendment stands in my name and in that of my noble friend Lord Howe. In Grand Committee we addressed the composition of the Human Tissue Authority. At that stage I was in favour of there being a majority of the appropriate professional people and a minority of the lay membership. Our amendments reflected that. I was entirely in support of there being a substantial lay
 
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membership but, at that stage, I believed that it should be in a minority. However, having heard the argument at that stage, particularly the arguments made by the noble Lord, Lord Walton of Detchant, and the Minister, I accept that the Minister's proposal is that there should be about half and half professional and lay members. From that point of view, I have abandoned part of the original proposal.

Since we debated the matter, however, I have seen a copy of the advertisement that has been published by the NHS Appointments Commission for the chair and up to 14 members of the Human Tissue Authority. I would not dream of reading the whole thing, as most of it is irrelevant to my argument. However, the paragraph relating to members states:

After that, there are two columns, the first of which is headed "Lay members" and includes such subjects as "Ethics", "Legal", "Family representation", "Patient representation", "Media", "Finance" and so on. I have not read them all out.

The second column comprising professional members constitutes a somewhat surprising list. It reads:

I consider that a pretty rum list. It requires giving a very wide meaning to the word "researcher". I find it strange that it includes, for instance, a surgeon and a pathologist but it does not include someone who is a physician or any other specialties in the health service.

Therefore, the amendment is intended to reflect my wish that there should be a representation on the Human Tissue Authority of the professions as fairly widely drawn. I suspect that unless you give a very wide meaning to "researcher", this list is not as widely drawn as I would want it to be. In particular there is absolutely nothing to indicate that it should cover both the public and the private sectors.

On a day when the newspapers are carrying reports of the welcome growth of research by private sector companies it is noteworthy that by far the largest element in that is by the pharmaceutical industry in this country. I would regard it as strange indeed if the HTA were not to include someone from the private sector pharmaceutical industry. Pharmacologists are included in the list, but that is a very specific profession. I should have thought it ought to be made perfectly clear that both the public and private sectors are covered.

I have one other point only that I think is worth making. In justifying his "half and half" argument the Minister said:

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However, the inspectorates will shortly be removed from the Bill under the amendments proposed by the Government. It is therefore even more important that the authority itself should comprise a broad membership of the professional category of people as well as the half who will be lay people. I hope that the Minister can give us a very strong reassurance that that is, indeed, the Government's intention. I beg to move.


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