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Viscount Chandos: My Lords, I thank the Minister for his answer and I also thank all noble Lords who have spoken unanimously in support of the amendment or the principle behind it. The Minister said that we cannot be complacent, and I should like to take that as his strongest message rather than enter a debate about some of the statistics. As in most areas of life, one seems to be able to find eminently respectable and well researched statistics which are diametrically opposed in what they suggest.

I would have hoped that the practice in countries such as Spain of essentially checking with relatives would be seen by the Government as a reassurance that presumed consent does not open the floodgates to exploitation from which public concern flows. Therefore, it seems to me that the precedence abroad should encourage us that presumed consent would create an environment in which substantially higher rates of organ donation could be achieved.

That said, although I was pleased to hear my noble friend Lord Rea say that he regretted that I had indicated that I would not press this amendment, I would have loved to have found a way of harnessing the enthusiasm and commitment of all noble Lords who have spoken. I recognise that the Bill sets out to address perhaps a more specialist area of human tissues. I hope that the lack of complacency of which the Minister has assured us will become visible in the near future and that every opportunity will be taken to find a Bill and a moment when this area can be addressed. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Clause 33 [Restriction on transplants involving a live donor]:

[Amendments Nos. 43 and 44 not moved.]

Clause 35 [Inspectorate of Anatomy and Pathology]:

Lord Warner moved Amendment No. 45:


 
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On Question, amendment agreed to.

Clause 36 [Remit of Inspectorate of Anatomy and Pathology]:

Lord Warner moved Amendment No. 46:

On Question, amendment agreed to.

Clause 37 [Inspectorate of Organ and Tissue for Human Use]:

Lord Warner moved Amendment No. 47:

On Question, amendment agreed to.

Clause 38 [Remit of Inspectorate of Organ and Tissue for Human Use]:

Lord Warner moved Amendment No. 48:

On Question, amendment agreed to.

Schedule 4 [Inspectorates: Boards]:

Lord Warner moved Amendment No. 49:

On Question, amendment agreed to.

Clause 39 [Duties in relation to discharge of functions by Inspectorates]:

Lord Warner moved Amendment No. 50:

On Question, amendment agreed to.

Clause 41 [Annual report]:

Lord Warner moved Amendment No. 51:

On Question, amendment agreed to.

Clause 44 [Criminal justice purposes]:

Lord Warner moved Amendments Nos. 52 to 55:

On Question, amendments agreed to.

Baroness Finlay of Llandaff moved Amendment No. 56:

The noble Baroness said: My Lords, I hope that it will not take very long to deal with this and my other amendments in this grouping. I was delighted to see that the Government have also tabled an amendment in this grouping in order to correct some wording. I was rather hoping that they might have added their name to my amendment, but no such luck.

The reason that I used the words,

is that everyone who removes tissue must ultimately be answerable to a coroner's purposes, which are to determine the nature and cause of a death. Often those are not immediately apparent.
 
25 Oct 2004 : Column 1137
 

I hope that when, as I am sure he will do, the Minister rejects my amendment in favour of those tabled by the Government, he will give me the reassurance that all the police officers who might first attend where a body has been found can be classified as "constables". In my mind, the word "constable" has a slightly narrower definition, but I hope that every member of the police force who might be present can be called a "constable". If that is the case, I shall be only too happy to withdraw my amendment and accept those of the Minister. I beg to move.

Baroness Andrews: My Lords, I shall take the invitation offered by the noble Baroness to speak to the government amendments and shall deal with her amendment at the same time.

Clause 44 is designed to ensure that activities done for scheduled purposes which are also done for criminal justice purposes are excluded from regulation by the Human Tissue Authority. During Grand Committee, the noble Baroness made a valiant attempt to introduce more clarity into the provision by proposing an amendment to Clause 44(3) to delete the words "by a constable" from the subsection. In debate on the amendment, it emerged that there was some uncertainty about the interpretation of subsection (3), which is intended to ensure that coroners' post-mortem activities which take place "at the scene" do not require a licence from the HTA.

There was confusion about whether the mention of the constable—I can assure the noble Baroness that "constable" covers everyone to whom she referred, including chief constables—referred to the police first removing tissue from the body or whether the provision applied only to bodies found by the police as opposed to passers-by. The noble Baroness gave us a very graphic description of passers-by who had, indeed, found bodies.

Therefore, in order to remove ambiguity and to respond to the noble Baroness's Amendment No. 59, the Government agreed to look again at the text of the clause in order to clarify it. The usual expression "at the scene" was previously expressed as,

I think that some of the confusion expressed in Committee concerning the clause relates to the word "found" as much as to the phrase "by a constable". As the noble Baroness, Lady Finlay, emphasised, the majority of bodies are more likely to be found by other people rather than by the police. To avoid ambiguity, these amendments propose to change the description of these "at the scene" post-mortem activities from being at,

to being at,

The wording may not be very elegant but it now says what it means. The formulation expresses clearly the purpose of the provision, which is that the exemption from licensing should apply only to the place where the
 
25 Oct 2004 : Column 1138
 
police first arrive on the scene, even if other people have arrived before them. So the exemption applies to the place where the constable first attends.

There are obvious reasons why it would be inappropriate for material to be taken from a body before the proper authorities have become involved, but we do want to allow proper investigation to proceed unhindered. This clause ensures that that will happen. I hope that the noble Baroness is content with those changes and with that explanation.

On Amendment No. 56, I know that this is very difficult conceptually because we are dealing with a non-inclusion in an exemption from an exception, which is hard to follow. The amendment would insert the words,

in subsection (3) of Clause 44. However, subsection (3) operates by reference to subsection (2) which already contains the phrase,

Subsection (3), therefore, cannot be any wider than subsection (2) and must be limited to removals for coroners' purposes. In other words, the Human Tissue Authority's remit and licensing requirements do not apply in the particular circumstances described in subsection (3) where they are undertaken for coroners' purposes. In the interests of brevity, it would be preferable—I suggest it is redundant—not to repeat the phrase unnecessarily. On those grounds I hope that the noble Baroness will feel able to withdraw her amendment.


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