HC Deb 28 June 2004 vol 423 cc39-95

'(1) Where part of a body of an adult lying in a hospital or other institution is or may be suitable for use for transplantation, it shall be the duty of the person having the control and management of the institution to ensure that, before any organ is removed from the body, each of the conditions specified in subsection (2) is met.

(2)Those conditions are—

(a)that the deceased was, immediately before he died, ordinarily resident in England, Wales or Northern Ireland;

(b)that the deceased did not, during the relevant period, lack the capacity to decide to make his organs unavailable for removal for the purpose of transplantation;

(c)that, where the person to whom the duty under subsection (1) applies knows, or has reason to believe, that—

  1. (i)the body of the deceased person, or
  2. (ii)relevant material which has come from the body of a deceased person,
is, or may be, required for purposes of functions of a coroner, the consent of the coroner has been obtained;

(d)that it has been duly ascertained that the deceased—

  1. (i)had decided to make his organs, or the relevant organ, available for removal for the purpose of transplantation and had had that decision duly recorded in the register, or
  2. (ii)had not had a decision to make his organs, or the relevant organ, unavailable for removal for the purpose of transplantation duly recorded in the register; and

(e) that no person with a right to signify an objection under the provisions of section [duties to persons who stood in a qualifying relationship in relation to transplantation] has done so.

(3)Where each condition in subsection (2) is met, "appropriate consent" shall have been determined for—

  1. (a)the removal of organs, or the relevant organ, for the purpose of transplantation,
  2. (b)the storage for use for the purpose of transplantation of such organs and of associated tissue, and
  3. (c)the use for the purpose of transplantation of such organs and of associated tissue.

(4)Where a body is transferred to another institution prior to the removal of any organ, the duty under subsection (1) shall also be transferred to the person having the control and management of the institution to which the body has been transferred.

(5)In dealing under section 23(1) with the matters mentioned in this section and sections [register of personal decisions about availability of organs for purpose of transplantation] and [duties to persons who stood in a qualifying relationship in relation to transplantation], the Authority shall, in particular, lay down the standards expected in relation to the performance of the duty imposed by subsection (1).

(6)The person to whom the duty under subsection (1) applies may designate another person to perform activities in relation to that duty.

(7)It shall be the duty of the person to whom the duty under subsection (1) applies to secure that any person designated under subsection (6) to perform activities is a suitable person to participate in the carrying-on of those activities.

(8)This section shall not be read as making unlawful anything which is lawful apart from this section.

(9)For the purposes of this section a person lacks capacity in relation to a decision to make his organs unavailable for removal for the purpose of transplantation if during the relevant period he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain.

(10)In this section and sections [register of personal decisions about availability of organs for purpose of transplantation] and [duties to persons who stood in a qualifying relationship in relation to transplantation]—

Brought up, and read the First time.

Dr. Evan Harris

I beg to move, That the clause be read a Second time.

Mr. Speaker

With this it will be convenient to discuss the following:

New clause 2—Register of personal decisions about availability of organs for purpose of transplantation—

'(1) It shall be the duty of the Authority to maintain a register of persons deciding to make all their organs, or specified organs—

  1. (a) available, or
  2. (b) unavailable
for removal for the purpose of transplantation.

(2)Any person who decides to make all his organs, or specified organs—

  1. (a) available, or
  2. (b) unavailable
for removal for the purpose of transplantation may inform the Authority in a prescribed manner.

(3)Any person who has informed the Authority of his decision under subsection (2) but then makes another decision may inform the Authority in a prescribed manner.

(4)Upon receipt of information in accordance with subsection (2) or (3) the Authority shall—

  1. (a)confirm to the relevant person in writing that the information has been received and
  2. (b)ensure that—
    1. (i)an appropriate entry is made in, or removed from, the register, or
    2. (ii)the appropriate entry is amended.

(5)The Secretary of State may by regulations prescribe the ways in which an adult may provide information to the Authority for the purposes of this section, including opportunities to provide such information when a person is—

  1. (a) registering for the receipt of, or receiving, primary medical services,
  2. (b) applying for a driving licence, or
  3. (c) making an application for a passport.

(6) The Authority shall take such steps as it considers appropriate to promote public awareness of the register and of the means by which a person may make an entry in the register.

(7) Where the authority is satisfied that—

  1. (a) a person in relation to whom information is held on the register has died, and
  2. (b) a period of one month has elapsed since his death,
the Authority may remove the entry in respect of that person from the register.

(8) Information held by the Authority in accordance with the provisions of this section may only be made available to—

  1. (a) the person in respect of whom the information is held,
  2. (b) a person in a qualifying relationship to the person specified in paragraph (a) when that person is deceased,
  3. (c) a person to whom the duty under section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation] applies, and
  4. (d) such other persons as may be prescribed by regulations.

(9) A person commits an offence if he—

  1. (a) makes information held by the Authority in accordance with the provisions of this section available other than to the persons specified in subsection (8),
  2. (b) does anything which causes an entry—
    1. (i) not to be made in the register after the Authority has been informed in a prescribed manner,
    2. (ii) to be removed without due authorisation, or
    3. (iii) to be false or incomplete.

(10)A person guilty of an offence under subsection (9) shall be liable to—

  1. (a) imprisonment for a term not exceeding 12 months, or
  2. (b) a fine not exceeding the statutory maximum, or
  3. (c) both.'.

New clause 3—Duties to persons who stood in a qualifying relationship in relation to transplantation

'(1) It shall be the duty of the person to whom the duty under section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation] applies to—

  1. (a) inform the person or persons who stood in a qualifying relationship to the deceased immediately before the death of the deceased of his or their rights under this section, and
  2. (b) to provide him or them with an opportunity to exercise those rights.

(2) Those rights are—

  1. (a) to be informed about the operation of relevant provisions of this Act,
  2. (b) to signify an objection to the removal of a relevant organ for a reason specified in subsections (3) to (5).

(3)The reason specified in this subsection is that the deceased person had made known his decision to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation even though he had not informed the Authority for the purpose of the making of an entry in the register.

(4)The reason specified in this subsection is that—

  1. (a) the deceased person had made known his decision to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation, and
  2. (b) he had informed the Authority accordingly, but
  3. (c) a relevant entry was not made in the register, or
  4. (d) the appropriate entry in the register was not amended accordingly.

(5) The reason specified in this subsection is that the removal of a relevant organ for the purpose of transplantation would cause significant distress to any person who stood in a qualifying relationship to the deceased immediately before his death.

(6) The person to whom the duty under subsection (1) applies may designate another person to perform activities in relation to that duty.

(7) It shall be the duty of the person to whom the duty under subsection (1) applies to secure that any person designated under subsection (6) to perform activities is a suitable person to participate in the carrying-on of those activities.

(8) The qualifying relationships for the purposes of this section are—

  1. (a)spouse or partner,
  2. (b)parent or child.
  3. (c)brother or sister.

(9) The qualifying relationships shall be ranked in the order given in subsection (8) for the purposes of subsection (1).

(10) Relationships in the same paragraph of subsection (8) shall be accorded equal ranking for those purposes.

(11) The duty under subsection (1) shall apply in relation to the person or persons whose relationship to the person who has died is accorded the highest ranking in accordance with subsections (8) to (10).

(12) If two or more persons are accorded equal ranking in accordance with subsections (8) to (10), the duty under subsection (1) shall apply to all of the persons accorded that ranking.

(13) In applying the principles set out above, a person's relationship shall be left out of account if—

  1. (a) he does not wish to exercise his rights under this section,
  2. (b) he is not able to exercise those rights, or
  3. (c) it is not reasonably practicable to communicate with him within the time available before the organ or organs must be removed.

(14)Nothing in this section affects the general professional obligations of registered medical practitioners in relation to the family of the deceased.'.

New clause 5—Elective ventilation for transplantation

(1) This section applies where—

  1. (a)a patient is in a hospital, nursing home or other institution; and
  2. (b)the person having the control and management of the institution reasonably believes that—
    1. (i)consent making removal of part of the body of the patient, after he has died, for transplantation lawful has been, or will be, given,
    2. (ii)part of the body of the patient is or may be suitable for use for transplantation after he has died, and
    3. (iii)elective ventilation would be appropriate.

(2) Where this section applies it shall be lawful for the person having the control and management of the institution to administer elective ventilation.

(3) Authority under subsection (2) shall only extend to the taking of the minimum steps necessary for the purpose mentioned in that provision.

(4) Authority under subsection (2) ceases to apply once it has been established that consent making removal of the part for transplantation lawful has not been, and will not be, given.

(5) Authority under subsection (2) shall extend to any person authorised to act under the authority by—

  1. (a) the person on whom the authority is conferred by that subsection, or
  2. (b) a person authorised under this subsection to act under the authority.

(6) In this section, "elective ventilation" means the use of artificial ventilation in a comatose patient who is close to death from severe brain damage for the purpose of protecting part of the body of the patient for transplantation after he has died rather than for the benefit of the patient himself.'.

And the following amendment thereto: (a), in line 9, after 'died', insert— '() a decision of the patient to consent to the activity is in force,'.

Amendment No. 10, in page 2, line 45 [Clause 1], at end insert— '(10) In this section, "use" does not include any activity authorised by or under section 44.'.

Amendment No. 1, in page 4, line 11 [Clause 3], leave out 'or public display' and insert ', public display or transplantation following removal where each of the conditions specified in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation](2) is met'.

Amendment No. 2, in page 4, line 23, at end insert— '(5A) Where the person concerned has died and the activity involves any of the matters specified in subsection (5B), "appropriate consent" means consent determined in accordance with the provisions of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation]. Those matters are—

  1. (a)the removal of the material specified in subsection (5C) for the purpose of transplantation where each of the conditions specified in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation](2) is met,
  2. (b)the storage for use for the purpose of transplantation of the material so removed, and
  3. (c)the use for the purpose of transplantation of the material so removed.
That material is—
  1. (a)an organ,
  2. (b)associated tissue.'.

Amendment No. 3, in page 4, line 31, at end insert— '(8) In this section "associated tissue" and "organ" have the same meanings as in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation].'.

Amendment No. 4, in page 4, line 34 [Clause 4], at end insert 'except where consent is determined in accordance with the provisions of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation]'.

Amendment No. 11, in page 8, line 35 [Clause 11], at end insert— '(aa) activities authorised by or under section 44;'.

Amendment No. 5, in page 14, line 22 [Clause 23], leave out paragraph (d) and insert— '(d) the definitions of death for the purposes of this Act, including a definition of death confirmed by brain stem tests for the purpose of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation]; (da) the procedures to be followed in relation to brain stem tests for the purpose of confirming death;'.

Amendment No. 12, in page 14, line 35, at end insert— '(ja) activities authorised by or under section 44;'.

Government amendment No. 66.

Amendment No. 13, in page 28, line 7 [Clause 44], at end insert— '(4A) This section shall not be read as making unlawful anything which is lawful apart from this section.'.

Government amendment No. 47.

Amendment No. 6, in page 33, line 19 [Clause 55], after 'Act', insert 'except section [duties to persons who stood in a qualifying relationship in relation to transplantation]'.

Dr. Harris

I am grateful for the opportunity to raise the question of presumed consent and I am grateful to those hon. Members who have put their name to the amendment for their indication of support. I hope to set out in my opening remarks the current situation with regard to organ transplant, explain the proposed change, briefly explain what each new clause and amendment would do and then set out the reasons for the change. Finally, I shall deal—in advance, if I may, for a further occasion—with some arguments that Ministers, among others, have used against the proposals.

I hope also that the Minister responds to my "prebuttal" of her points, if she feels I have them right, rather than simply repeating them without reference to some facts that we seek to express.

Mr. Andrew Mackay (Bracknell) (Con)


Dr. Harris

The right hon. Gentleman claims that that is optimistic, but I know that we want a good debate rather than simply a repeat of what was said on Second Reading, which, like consideration in Committee, provided an opportunity for differences to be aired. I respect the strong views of those on the other side of the discussion, and I know that those who share my view also respect their strong views. We need to have an exchange of views. If there is an area where the Government feel that the proponents of this measure have it wrong, I am keen that we accept that and revise our position.

The current arrangements, which are best described as relatives' consent with opt-in, stem from the Human Tissue Act 1961. Although it has been described, in shorthand, as an opt-in system, it is best described as seeking relatives' consent, often on a guess, as to what the person would have wanted, with an opt-in to guide them. If someone is in such a position that their organs could be used after their death for transplantation purposes—that is, they have died and their death has been confirmed by brain stem testing on a ventilator in the intensive care unit with no medical contraindications to organ donation—doctors may approach relatives to seek permission so to use the organs.

At the moment, relatives, often at the height of their grief—such deaths are often of young people following a road traffic accident or other trauma—are asked to decide whether the organs can be used. In a small minority of cases, the potential donor would have made clear to relatives his or her opposition to donation. That is generally and rightly respected by those relatives, although it need not be if relatives choose not to do so.

In a larger minority of cases, but still a minority, the potential donor will have indicated a wish to donate by telling relatives, carrying a donor card and/or registering on the organ donor register. Relatives still have to give consent, and in a significant minority of those cases relatives withhold their consent: in the potential donor audit, relatives refused in 11 out of 226 cases in which the organ donor register was consulted. That is not a virtual nothing, in terms of that frequency, but a problem with which both systems must deal. We should not think that it is not also present in the current system.

In the majority of cases, as recognised by the potential donor audit carried out by UK Transplant, the wishes of the potential donor are unknown. In those cases, relatives are forced to second-guess the wishes of their loved one. In about half those cases, permission is withheld—again, those data come from UK Transplant's potential donor audit for the first few months of 2003. If we make a comparison with previous research, that proportion has increased in the last 10 years from 30 per cent. to nearly 50 per cent.

Dr. Murrison

On a point of clarity, I think that the hon. Gentleman said, as I think that the record will say, that relatives have to give consent. I am not sure whether he meant that. Perhaps he might like to think again about precisely what he meant. In fact, they do give their consent, and it is always sought, and rightly so. We need to be absolutely clear about the letter of the law.

Dr. Harris

I will repeat what I was seeking to get across: in a larger minority of cases, the potential donor will have indicated a wish to donate, as in the examples that I used, and relatives still have to give consent, or they still have to be consulted for that consent. I will clarify that. As I explained, in a significant minority of cases—each one is significant for the person or people who will die because that organ is not available, so even one case is significant—relatives withhold their consent.

Under the proposed change, the system would be one in which consent by the potential donor was presumed unless he or she had registered or made known an opt-out. The plan would be that after a widespread media and education campaign, which would be prompted by the change in the law but would take place before it came into effect, every adult would be given multiple and continued opportunities to register their objection to their organs being used after their death for transplantation, and to discuss that view with their relatives. As I described previously, were it the case that someone's organs could be used after their death for transplantation purposes, doctors would have a legal duty to check the opt-out register, to see whether the person had registered an objection. If so, no approach other than the explanation that might be required would be made to relatives, and the wishes of the deceased would be respected. If no opt-out had been registered, relatives would be approached and asked whether they knew of any objection of the deceased that had not been registered. If so, organs would not be taken for transplantation, as previously. If no objection had been registered, and if no objection was known by relatives, medical staff would express an intention to use the relevant organs for life-saving or life-transforming transplantation, in line with the presumed or, where relevant, expressed wishes of the potential donor.

At that point—this is the soft opt-out proposed by me, and supported by the British Medical Association and others—if relatives demonstrate that they would suffer significant distress as a result of the use of organs in that way, the organs would not be taken. This veto opportunity for volunteered distress by relatives is called the soft system of presumed consent, as used in Belgium, which is to be contrasted with the harder system, with no such veto, as used in Austria, for example.

Ian Lucas (Wrexham) (Lab)

Can the hon. Gentleman clarify who, in those circumstances, would assess whether the distress was significant?

Dr. Harris

The same people would make that judgment who make the judgment now when there is indecision or a disagreement among the relatives—the doctors who were caring for the deceased person. It would not be, as in other jurisdictions, doctors with a vested interest for the recipient, but doctors and nurses who have invested their time in looking after the deceased and caring, post-bereavement, for the relatives.

Mr. David Wilshire (Spelthorne)


Mr. Kevan Jones (North Durham) (Lab)


Dr. Harris

I give way first to the hon. Member for Spelthorne (Mr. Wilshire), who has a particular interest in this matter.

Mr. Wilshire

Following the previous intervention, do I understand the hon. Gentleman correctly? Is he telling us that somebody somewhere, even if they were not involved in the particular case, would have the power to overrule relatives who were distressed? How on earth can anybody measure the amount of distress coming from the bereavement as distinct from the amount of distress coming from the request to object to a transplant?

Dr. Harris

These are difficult areas. It is done successfully in Belgium, in respect of both providing more organs and meeting public acceptability. Surveys of relatives show that they are pleased to be relieved of the responsibility of taking a difficult decision at the height of their grief. That is how it would be done here. Clearly, the relatives are distressed as it is, and the current system expects them to take a decision, to second-guess the wishes of the deceased at the peak of their grief when brain stem death will just have been declared after what is normally a short illness following a traumatic injury. In those circumstances, the distress of relatives is already present.

This system proposes that relatives are approached to ascertain whether there were any unregistered objections and it gives them the opportunity to volunteer the view that they do not wish the transplant to go ahead. The difference is that they will not be asked for their view, because the view of the deceased will predominate, whether it be expressed or presumed. Nevertheless, if the relatives have a view, after they know that the organs will otherwise be used, they can state that they would suffer distress and the judgment would be made in the same sensitive way as at present.

I hope that the hon. Member for Spelthorne will accept that these are difficult decisions, but that they have to be made. He must remember that there is another set of distressed relatives—those of patients who are literally dying without the transplants. We have to ensure that we weigh up those two interests as sensitively as we can. Other countries have managed it successfully—by the Belgian method, for example, which has been carefully appraised and incorporates taking into account the views of relatives afterwards.

Mr. Wilshire

I am grateful for that response and if I catch your eye later, Mr. Deputy Speaker, I may comment on the views of other people and third parties. However, would the hon. Gentleman accept that one definition of hell would be to be already deeply upset and passionately opposed to what is about to happen to one's deceased relative and then to be told by someone, "I am sorry, but you are simply not upset enough"? That, for me, is a definition of hell.

Dr. Harris

As I say, the problem that the hon. Gentleman seeks to identify is a problem that occurs now in respect of organ donation where the deceased has a donor card, but relatives may well oppose it. Doctors have a very difficult problem when someone has said in life that they wish to donate, but another group of people are dying and their relatives are deeply concerned about it, and a third party—the bereaved relative whose interests must also be respected—expresses another view. These are difficult decisions to take now—they certainly had to be taken by my colleagues when I worked in acute medicine—and those difficulties will always be with us. We have to set out a framework to ensure that due respect is given to the strongly held views of bereaved relatives. The veto outlined in the provision does precisely that and it does so reasonably.

Mr. Kevan Jones


Mr. Dalyell


Dr. Harris

I am keen to make progress, but I will take these interventions.

Mr. Jones

I appreciate that the hon. Gentleman is attempting to give relatives some input or a veto. However, what happens when relatives are not present and the decision to transplant organs has to be taken, but relatives subsequently come forward to dissent? Would that not put doctors in the terrible position of having done something to which relatives subsequently take strong exception?

Dr. Harris

The hon. Gentleman will be relieved to know that that problem is far more likely to arise under the current arrangements because the Human Tissue Act 1961, which deals with circumstances when a donor card or the organ donor register has been used, does not require doctors to delay transplantation, because people can be kept ventilated after brain stem death only for so long while relatives are found. That is the first problem, and that already happens now when there is an indication of the deceased's wish but relatives are not present. I hope that the hon. Gentleman recognises that. In many such cases, if not in the vast majority, the deaths take place in intensive care following an illness where there is a process of diagnosis of death by brain stem injury, and relatives are invariably there, where they exist. It is not a rapid decision. There are some circumstances, however, in which rapid decisions need to be taken, and clause 44 presumes consent for cold perfusion in those cases. I not believe that the problem identified by the hon. Gentleman would be any greater than in the current circumstances that I described.

Mr. Dalyell

Is there not another definition of hell, which is the agony of the relatives of those desperately in need of a transplant and who see matching tissue going up in crematorium incinerators, when it is likely that the relatives of the deceased would have been only too happy to help someone else?

4.45 pm
Dr. Harris

I share that view and I hope that the hon. Gentleman has a chance to catch your eye later, Mr. Deputy Speaker. I know that he has a long history of campaigning on the issue and would be able to develop those points further.

The differences in the current system and the opt-out system reside mainly in the way relatives are approached. It is not that relatives are approached under one system and not approached under the other. In the current system, relatives are asked to make a decision, usually based on guessing their loved one's wishes or on their own feelings Under a system of presumed consent with opt-out, the absence of an objection is taken as the basis of a presumption of consent by a potential donor who is ordinarily resident, has capacity and is an adult. Relatives are approached only to seek evidence of unregistered objection or opt-out by the deceased, not to make a decision themselves.

Why do the proposers of the new clause want to change the present system? As I have said, if the present system were working well, improving, doing well enough or offered advantages compared to the one proposed, I would not propose a change. However, it is clear that the present system is not working well enough for prospective recipients, prospective donors or the relatives of the deceased. All those who support change support the current system while we have it, and I hope that it is acknowledged that I and others who support change have worked hard to promote the organ donor register and donor cards. However, we have to recognise that the present system is not working effectively for any of the people involved.

In terms of the effect on potential recipients, the number of cadaveric organ donors is falling year on year despite efforts made under the present system. The Minister may claim that last year there was an increase, but there was not an increase in the number of cadaveric organ donors in 2003 compared with 2002, nor in 2002 compared with 2001. That is what we are measuring. At the same time, the number in need of a transplant rises every year. That means, tragically, that more and more people are dying while on a waiting list for a transplant or before even making it to the formal waiting list. Many people do not make it to a waiting list because the criteria are tight—because the prospects for transplantation are so limited.

Potential donors—the deceased whose organs would be used—do not do well out of the present system either. Surveys have shown that 80 to 90 per cent. of people would in principle wish their organs to be used for transplantation after their death, if possible. However, under the present system, only 50 per cent. have their organs used, because of high rates of refusal by relatives. That means that many organs whose owners would have wanted them to be used to save lives are being buried or cremated with the deceased in direct contravention of their wishes—although I accept that those wishes are often unexpressed.

Nor are relatives of the deceased well served by the present system. They are put under pressure to make a decision, often at the height of their grief. There is now research to suggest that half of them make a decision that they later regret. Every time they see the story of a successful transplant in the media, they feel that their decision—at a time of heightened grief—was not the one that they would have made if they had known then what they know now.

Nor is the present system fair on medical staff. Doctors and nurses are asked to approach relatives to make a decision at a very difficult time. Nor does the NHS do well out of the present system. That is not a major consideration, but it has been mentioned by the media. Maintaining thousands of kidney patients on dialysis, instead of treating them with the far more cost-effective option of transplantation, uses up millions of pounds of NHS cash that could be spent on saving or prolonging the lives of others. That is not a key point and it is more ethical than financial, but even the financial arguments are in favour.

The second point is that presumed consent with opt-out works; it saves lives. Many other countries in Europe and the rest of the world use that system successfully. The average donation rate, in donors per million of population, is 25 per cent. higher in countries with opt-out than in countries that have an opt-in system. Scientific evidence and research backs that up. Several analyses published in scientific journals have looked at the effect of changing to presumed consent with opt-out on rates of organ donation and at other outcomes, such as public satisfaction and relatives' views. They all showed that such a change was successful.

Some analyses examined the factors that could be judged to account for a higher rate of organ donation in one country than another. All those studies cited presumed consent with opt-out as one such factor and often the only one that could realistically be changed; for example, the rate of road traffic accidents is a factor but it would be hard to change that—one would certainly not want to. Another factor is the proportion of people with a particular religious view; in Europe, Roman Catholicism is associated with a higher rate of donation. Those factors are hard to change, but the one thing that countries can change—the one thing Parliament can change—is the law.

Dr. Gibson

In those successful countries, have their Parliaments and local organisations attempted to highlight and publicise the need to donate organs? Is there a correlation between that and their success? Does the hon. Gentleman have figures on that?

Dr. Harris

A change in the law might lead to a temporary increase in donations due to heightened awareness. There was an interesting experiment in Belgium. When the law was changed, and everyone was subject to the same education and publicity, one centre kept to the previous system of seeking formal consent from relatives while another centre switched to the new system. At the second centre, there was a significant and sustained increase in organ donation, which continues to be maintained, but at the first centre, with the original system, the rate, which was lower, stayed the same. Those results were published in peer-reviewed medical literature.

It is thus not acceptable for the Government to say, as they did in their press release of 14 January, that there is no evidence that presumed consent with an opt-out works. It is clear that there is such evidence in the scientific literature. Indeed, all the papers published in peer-reviewed journals indicate that the system works. The Government may not be convinced by the evidence and I respect that view, but to say that there is no evidence or that the evidence is on their side is wrong; it is a misrepresentation and I hope that Members on the Treasury Bench will not continue with it.

Mr. Dalyell

The hon. Gentleman made reference to the attitude of the Roman Catholic Church, which, of course, varies from time to time, according to whom one is talking to. Before I introduced the first of the ten-minute Bills, my colleagues told me to go and see Cardinal Heenan, so I did and there was certainly no objection at that time from the Roman Catholic hierarchy in England.

Dr. Harris

None of the major religions opposes either organ donation or switching to a system of presumed consent. There is certainly no evidence of differential take-up for one system or another. We know that ethnic minority populations are less likely to donate organs, yet are more likely to need them—for example, owing to the incidence in the Asian community of diabetes leading to end-organ failure—so we need to increase the supply across the board.

Mr. Pound

That point has been raised by several people. Does the hon. Gentleman see anything in the Government's proposals that would actually increase the amount of donation, especially among the south Asian community? I am thinking of the work of Dr. Kartan Lalvani, who, for several years, has been trying to increase donation because of the high rate of take-up. Does the hon. Gentleman agree that, almost irrespective of anything else we discuss today, we must concentrate on that aspect? We must increase the amount of those donations.

Dr. Harris

Absolutely. Regardless of what happens today, we need to support the measures and projects being undertaken by UK Transplant. I welcome much of what the Government have done in respect of the existing system and we also recognise the work being done in those communities by UK Transplant and by the National Kidney Research Fund.

The third point about the scientific basis to believe that opting out would work is that it would tackle the real cause of low donation rates. A comprehensive audit of potential donor experiences in UK intensive care units has been carried out by UK Transplant—a Government-funded body, charged with running the organ donor system. It considered every death on ICU during a published period in 2003, and which of them had the appropriate medical indications where transplantation might be considered, where brain-stem testing was done and where transplantation was considered and relatives were approached. That showed that the reason why organ donation rates are low and falling is specifically the high rate of refusal by relatives—approaching 50 per cent.—not other factors, such as doctors failing to approach relatives. It is often said, "Oh, we should just improve the number of times that doctors approach relatives. They are being lax. They are not tackling the issue because it is so difficult for them to raise." That audit clearly showed that relatives are being approached and that the specific cause of our low donation rates is relatives' refusal. The low rate is not caused by the fact that, for example, organs are not used although permission has been given, which is a factor in other countries that have high wastage rates.

Dr. Gibson

Does the hon. Gentleman think that there might be a correlation with an anti-science, anti-medical culture that has developed since events such as those at Alder Hey? That might be the underlying reason why people do not entrust organs to the hands of the medical brotherhood and sisterhood.

Dr. Harris

There appears to be no temporal association with a drop in organ donation and the events at Alder Hey or Bristol—thank goodness—but there has just been a steady and slow drop, and the only data points that we have for relative refusal is 30 per cent. in 1993, from the Gore study, and approaching 50 per cent. from the potential donor audit, being conducted nationally now. We know from opinion polls that people distinguish between the use of organs for research and the use of organs for transplantation. Those people who are badly affected by what happened Alder Hey and Bristol do not oppose presumed consent or organ donation generally for transplantation. I have had discussions with. for example, NACOR, which confirms that that is the case. The focus is on, first, children, and secondly, informed consent for the use of organs.

David Taylor (North-West Leicestershire) (Lab/Coop)

Do not surveys frequently show that between 70 and 90 per cent. of people have no objection to organ donation? The hon. Gentleman quotes the figure that 50 per cent. of grieving relatives fail to give permission, but that must only be because they are taking a precautionary approach, never having discussed the issue with their loved ones. Is that not a reasonable stance for them to take?

Dr. Harris

Yes, given that relatives are forced to make a decision, but it is very difficult for them to know what to do. Indeed, the potential donor audit asked relatives why they said no. In the main, they did not say no because the deceased did not want to donate. In 26 cases, the reason given in the audit was: Next of kin not sure whether patient would have agreed to donation. That would be solved by presumed consent, as the relatives would be given a presumption because of the failure to opt out where that occurs. [Interruption.] That is better than guessing. I understand that hon. Members are concerned about that, but relatives must guess at the moment. They are unable to do so; they play safe, so several other people suffer because those organs are not available. However, we know, as the hon. Gentleman said, that 90 per cent. of people support organ donation.

David Taylor

I am grateful to the hon. Gentleman for giving way again. I would want to support new clause 1 and I strongly support its spirit, but his argument is, in fact, seriously flawed. Relatives who had no idea whether their loved ones would have wanted to agree to organ donation will not have then fears assuaged by the fact that a default system is somehow at work. The two things are totally separate, are they not?

Dr. Harris

No. In fact, that is the key point, as shown by the successful operation of presumed consent in Belgium. First, the opt-out provides the opportunity to discuss such things with the family, so those discussions take place more than when there is an opt-in system with a donor card. We would all wish that those discussions took place more often. Secondly, the fact that someone has applied for a passport or been to the post office and applied for a driving licence and all those other things without registering an opt-out relatively straightforwardly should reassure relatives, as it does in those countries that use such a system, that their loved one did not object, even if, like many people, they did not think about it. That will allow relatives safely to consider such things and to find reassurance in the fact that other people will benefit from their lives being saved by that gift of life.

I am keen to make progress—I know that other people wish to speak—so I shall now deal with some of the ethical issues. I believe, and the British Medical Association believes, that presumed consent with opt-out is ethical; indeed, it is highly ethical, and many ethicists would argue that it is more ethical than the current system, for a number of reasons.

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First, it creates a default position that life should be saved rather than a default position that life could be lost. Secondly, as the evidence shows, it saves lives that are currently needlessly being lost; and thirdly, it encourages informed decision making by potential donors during life as opposed to what is inevitably subjective second-guessing by grieving relatives after death. Fourthly, it is more likely as we have heard, to respect the autonomy and wishes of the deceased, the vast majority of whom would want to donate, while still allowing conscientious objectors to do so while having protection in law for their objections. Finally, it treats relatives more fairly by not imposing life-and-death decision making upon them at a very difficult time.

Presumed consent with opt-out meets the wishes of the deceased for the reasons that I have given, in that the vast majority of people wish to donate. As I have said, presumed consent is fairer to relatives, because we know that many relatives regret making decisions to say no when they realise that they could have saved a life. It is fairer to them because, under the soft system, there are the following benefits. They are not asked to make a de novo presumption or guess about the wishes of their loved one, and they are asked for any knowledge of an unregistered expressed objection by their loved one. That is considered a valid opt-out, so that protection exists. After they are informed of the intention to use organs for transplantation on the basis of expressed or presumed consent, they are given the opportunity to volunteer their own objections. Finally, presumed consent applies only to adults over the age of 16. In the case of children, under our proposals, parental consent would be required as now. That, must be made clear.

Mr. Wilshire

I am doing my level best to follow the hon. Gentleman's ethical arguments, and I can see why he says that there is an element of guesswork as to what the deceased would have thought. However, to argue that presumed consent eliminates any guesswork is not correct. It may well be that the odds of getting it right are greater, but presumed consent will not be right 100 per cent. of the time.

Dr. Harris

Because presumed consent removes the decision that is often based on a guess from the relatives, it removes the guess. I think that the hon. Gentleman is right that it would meet the wishes of the deceased—I am glad that he accepts this—on the vast majority of occasions. That is not the case at the moment. It also benefits the other group of interested parties: the people who are desperate for the transplantation.

Mr. Wilshire


Dr. Harris

I know of the hon. Gentleman's particular interest in the subject, so I shall, of course, give way again.

Mr. Wilshire

I want to ensure that the record is correct. I do not believe that I said that presumed consent would meet the wishes of the deceased; I said that it might meet the wishes of more deceased, but I most certainly did not say all.

Dr. Harris

I think the hon. Gentleman was saying—this follows logically—that presumed consent is more likely to meet the wishes of the deceased on more occasions than the current situation in which 50 per cent. of people do not have their organs used even though 80 to 90 per cent. of them are not opposed to the use of their organs. That is a big gap, and no system could be worse than that in terms of meeting their needs.

In the final part of my speech, I wish to deal with the rebuttals that have previously been made as that will aid the debate. The Government have said in a press release and elsewhere that there is no evidence that such a system would work, but that is simply not the case. I welcome the fact that the Government say that they want to make evidence-based policy, but they should know that there was a report in The Lancet on 30 May 1998, volume 351, by a group describing the evidence that a shift to opt-out had increased the number of cadaveric donors in Spain, Austria and Belgium. It also showed very low opt-out rates—2 per cent. in Belgium—suggesting, much as polls show, that few people oppose donation. It said: In three western countries there is evidence that changing to a contracting out system resulted in an increase in organs. The Government may say that that was just a group of junior researchers, some fly-by-nights without much credibility. The lead author was Professor Sir Ian Kennedy, who wrote the Kennedy report on the Bristol heart scandal. He is clearly respected sufficiently by the Government to be appointed to head the new health care commission that inspects the NHS.

More sophisticated studies have examined possible confounding factors. Ronald Gimbel, an American, and his group examined the situation throughout Europe and tried to identify specific factors that increased the organ donation rate using a regression analysis. He identified four factors, and said: Evidence from this study, and from the studies previously discussed, clearly suggest that the practice of presumed consent (opting-out) legislation has had a significant effect on the number of cadaveric donors per million population. As the gap between the supply and demand for transplant continues to widen, professionals and policymakers should consider revisiting the implications of this legislation, or some hybrid of alternatives, as an effort to expand the 'the gift of life' to those in need.

The study represents peer-reviewed scientific evidence, so the Minister cannot simply repeat the mantra, "There is no evidence." She may not be convinced by the study. Indeed, she may be able to cite a peer-reviewed scientific study that suggests that presumed consent is not a relevant factor, although I have not read one, but she should not say that there is no evidence for my proposals. I could cite other papers, but I shall not do so for reasons of time. The Government's research shows that presumed consent could work because the potential donor audit identified the problem as relatives' refusal.

I accept that it was important for such work to be done before any changes were made to the system. The Government claim that the current system is working, but they need to examine the statistics published on UK Transplant's website, because they show a year-on-year decline in organ donation, including over the past year. Statistics for the year ending 31 December 2003 clearly show that the percentage change for total solid organ transplants between 2002 to 2003 was minus 5 per cent: there were 2,219 such procedures in 2003 and 2,333 in 2002. That represents a fall over the past year, in my book. There was an 8 per cent. drop in the total number of deceased donors, from 770 in 2002 to 710 in 2003. Even if the Government choose four quarters at random, they cannot say that we have turned a corner—sadly. I respect the work of UK Transplant, but we must accept that the current situation is not working.

The Government say that there is a need to consult relatives to identify social factors that might contraindicate transplants, and the Minister repeated that on the radio. I agree, but relatives would be asked that question under the proposed system, as well as being asked whether unregistered objections existed. The Minister cannot claim that the need to consult relatives about a person's social history is an argument against my proposal.

The Minister has cited the case of a child in France, but the measure would not apply to France. Even if the Bill were amended by the new clauses, it would be unlawful for children's organs to be used for transplant without parental consent. France has not changed its law back from a system of presumed consent, as is set out clearly in the Gimbel paper. If the Minister can cite a different paper or argue with the letter than I received from the French Ministry, that is fine. However, she should not say that France has changed its law back to what it was before.

The Minister might argue that Spain uses informed consent in practice, despite the fact that it has provisions on presumed consent in law. I accept that that is the case, but Spain has a culture of presumed consent, so it can use informed consent, or relatives' consent. As the country has a high rate of organ transplants for other reasons, it has less need to push presumed consent as much as possible. The situation in Spain is not an argument against presumed consent, but an argument for changing this country's law.

I have heard that the Government have argued that they have put a Whip on the vote because my proposal represents an expenditure issue. However, that cannot be right, so I think that the hon. Member for Ealing, North (Mr. Pound) spoke for many people when he said that such a suggestion would be ridiculous.

The Government have argued—this may be the view of the Conservative Front Bench—that as the Bill is all about informed consent, we should not move away from that approach. The current system for organ donation is one not of informed consent but of relatives' consent, and that often boils down to relatives making second guesses at a difficult time. Arguing that the provisions should not be included in the Bill is wrong in principle. Given that such Bills come along only once every 40 years, it is little consolation to suggest that another Bill might come along shortly. It should not be suggested that my proposals are not relevant to a Bill that deals with issues surrounding Alder Hey and the use of children's organs for research.

I am grateful to the House for allowing me to set out my arguments at such length. I hope that hon. Members accept that I took interventions to allow people to challenge my views and I look forward to the rest of the debate.

I stress that we support the existing system as far as it goes, but it is not working, there is an alternative, and at the very least the Government should be calling for a public debate. They cannot simply say that we cannot change the law because there has not been a public debate and they are not going to have one. They need to answer to the thousands of people on transplant waiting lists and their relatives, and to those who have been buried or cremated with their organs when they would have wanted them to be used. It is those two groups of people to whom the new clauses speak, and I hope that the Government will listen through us to them.

Mr. Dalyell

As the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, I have a long history in this matter, going back to 1970 when I introduced a ten-minute Bill. I do not propose to regurgitate history, because things have moved on, but I say one thing to Conservatives: ten-minute Bills usually empty the House. For the Bill that I presented, the House did as usual and emptied. However, there remained the former Conservative Prime Minister, Ted Heath, and he listened to what I said. In the Corridor shortly afterwards, he said, "I was very sympathetic, but you'll never get this past Keith Joseph and Department of Health officials." I say that because at that time there was considerable sympathy for such a proposal on an all-party basis. I say as an aside that, had there been a Labour Government in 1970, David Ennals and others would almost certainly have introduced a Bill on presumed consent precisely along the lines proposed in the new clauses tabled by the hon. Member for Oxford, West and Abingdon.

That is history, but to move to the present, and as lots of Members want to speak, I shall merely emphasise one point that the hon. Gentleman made most eloquently. It is totally unsatisfactory that decisions have to be made at the point of maximum grief. Of course relatives do not want to have to jump to a decision after a sudden, terrible accident. Furthermore and very importantly, for very understandable human relations reasons, doctors are rather reluctant to put the question. When a doctor is struggling to save some patient at a time of grief, the system fails. How can we expect a doctor to summon up the energy to ask the dreadful question, "Can we have organs?" One cannot blame them, as human beings, for not wanting to do so. I rest the argument for the moment on the point of maximum grief.

Given the history of the matter, is it really necessary to have a three-line Whip? [Interruption.] The former Secretary of State for Health—[HON. MEMBERS: "It was not him."] Ah, it was his neighbour. Nevertheless, the former Secretary of State for Health, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson), had better speak for himself. I ask my hon. Friends on the Front Bench to be tolerant on this matter.

Mr. Mackay

As so often, I agree with a great deal of what the Father of the House said.

May I emphasise, as somebody who at one time was the Government deputy Chief Whip, that I cannot understand why this Government have imposed a three-line Whip on the business before us. This is an immensely sensitive issue and which way each of us should vote is a matter of judgment—often moral judgment. There is no good reason whatever for Government Back Benchers and Front Benchers to be whipped. I commend the Liberal Democrats and my party for allowing a free vote. I put it to those on the Treasury Bench—I notice that there is no Whip present at the moment, but the Minister will no doubt pass on the comments to the Chief Whip—that such behaviour devalues public debate and confidence in the House.

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Many issues are party political. Accordingly, and rightly, we are whipped on them. However, there are many issues that attract great interest from outside the House on which the House is not divided along party lines. I suspect that many of my colleagues oppose the new clause, which I support. That is healthy, right and proper. It would have been far better had the debate been completely open and unwhipped. We have harmed public confidence in our House of Commons, and I deeply regret that. I hope that lessons can be learned for the future and that there will be more free votes on issues that are wholly non-party political. That should have been the case today. I strongly endorse the comments made by the Father of the House today and by the hon. Member for Ealing, North (Mr. Pound) last week when he broadcast to the nation in his usual voluble style.

A large number of right hon. and hon. Members wish to speak and I do not wish to delay the House unduly. We are, I hope, united on one point: we all want more organ donors and to reduce the number of people who are suffering while they wait for a donation and who might lose their lives during that period. I am sure that there is common consent throughout the House on that point. The question is how to get that. I strongly believe that opting out of donation rather than opting into it will increase the number of donations. A minority of people, for ethical and other reasons, do not want to donate their organs. I understand that. Their wishes must be respected, and if Parliament accepts the new clause they will have every right to opt out. Among the great majority of people, however, there is not only a general desire to donate their organs, but a degree of complacency or laziness—they never quite get around to getting an organ donor card. The new clause will put that right.

I conclude by gently chiding the Minister, which I do not like doing as I have a lot of time for her. She is not a new Labour clone who is unable to speak her mind; she comes from a far more distinguished background of Labour Ministers and I respect her for that. Perhaps it was because it was early in the morning, or perhaps it was because I had only just woken up, but I thought that one of the hon. Lady's replies on the "Today" programme was uncharacteristically insensitive. She said that, instead of doing as the hon. Member for Oxford, West and Abingdon (Dr. Harris) proposes, we should encourage doctors and nurses to persuade patients and their relatives in hospital that donation would be a good idea. With the greatest respect, let me point out that that means a doctor or nurse, at a most sensitive time, telling someone, "Look, you're probably going to die. Why not fill in this donor form?" or saying the same to a patient's relatives. That is unbelievably callous. I am not suggesting that the Minister is unbelievably callous, but that would be the result of her suggestion.

The ability to opt out of donating one's organs is a much better way forward. I hope that, even at this late hour, the Government have second thoughts and allow the new clause to go a stage further.

Mr. Frank Dobson (Holborn and St. Pancras) (Lab)

As my hon. Friend the Member for Linlithgow (Mr. Dalyell) will confirm, I have opposed the opting-out proposition both from the Opposition Front Bench and as a Minister. However, as I have listened to recent discussions, in particular the speech made by the right hon. and learned Member for Rushcliffe (Mr. Clarke) the last time that we debated the subject and the speech made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) today, I have become more doubtful. We have to recognise that the present system is not working: it does not produce enough organs to meet the needs of people who would be able to live a decent life if they had an organ transplant. I do not think that we can go on as we are, but nor do I think that simply attaching the opting-out proposition to the Bill is the best way forward.

There are a lot of arguments in both directions. It is ridiculous that we have reached a position in which Ministers assert that the French did something and the proposer of the new clause says that that is not the case. The least that the Government can do is to agree to produce a Green Paper or a discussion document setting out the facts of what has happened in those countries that have introduced an opt-out system. My principal concern about such a system is that there might be a terrible, scandalous incident that would be provoked into public hysteria by the news media. There would then be a huge falling off in the willingness of people to have their organs used. However, it should not be beyond the wit of this Parliament to come up with a proposition that would, generally speaking, protect against that.

Mr. Dalyell

My right hon. Friend is absolutely right. What scuppered things in the late 1960s and early 1970s was a scandalous incident whereby two patients were moved across my right hon. Friend's city of London to die in the right place, to the advantage of a particular renal surgeon. That was devastating for a cause that was otherwise a sensible one.

Mr. Dobson

I accept that. I recall the point that my hon. Friend is making.

It is wrong for the Government to have a whipped vote this evening, but despite that I will probably be voting with them. That is because I would want from the Government Front Bench an undertaking that we shall have a thorough-going examination of the whole issue.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab)

I know that my right hon. Friend is putting forward an informed and sensible proposition. However, does he accept that we have been debating these matters not for 10 years or for 20 years, but for as long as I can remember? Many people are dying now and not in the next 20 years. Does he agree that to ask for a Green Paper is, in House of Commons terms, putting back a very difficult decision that many of us do not want to take but one that we have a special responsibility to take?

Mr. Dobson

I accept all the points that my hon. Friend is making. I accept that it is a difficult decision. There are those on the extreme edges of both arguments who are certain, but there are many in the middle ground who are extremely confused, and who come from both ends of the spectrum. We owe it to them and to the people of this country generally that if we are to change the law, we must get it right. The worst thing that we could do would be to change the law in a way that ended up with a mess. We are not particularly good at making changes to the law on the hoof. We are not too good at making clear and sensible laws at the best of times, but as I have said we are pretty bad at changing things on the hoof. However, there is no reason why, within two or three months, the Government cannot come up with a closely argued proposition, setting out the views of the chief medical officer and others, so that there is thorough-going consideration. Then the Government can introduce a Bill in the next Queen's Speech and get on with things. That is what we should do.

Dr. Richard Taylor (Wyre Forest) (Ind)

I am so grateful to the Father of the House, the hon. Member for Linlithgow (Mr. Dalyell), for mentioning the doctors' dilemma. I was hesitant about putting forward the tremendous problem that practising doctors face at this fearful time. The hon. Gentleman was right to say that it is the worst time for any family to make a decision. It is the time of maximum grief. The thing that has moved me more than anything as a practising doctor who has had to ask relatives for consent for transplantation at this, the worst time, is that they have, on occasions, said to me afterwards, "Thank you very much. I realise what a terrible job it was for you." That has amazed me. That is the most generous thing anybody could ever say.

I am wholly in favour of the new clause. It would force people to argue among themselves before the moment occurred. At present, relatively few people discuss with their families whether they should fill in an organ donor card, but if there were presumed consent, I believe that many, many more families would talk about it and then, if a disaster happened to a young member of the family, the rest of the family would at least be aware of that member's wishes, and they would expect a doctor to ask at the crucial time. There is no doubt that the new clause would increase the number of organ donations, which are desperately needed by so many people.

Mr. Pound

I support the grouped clauses moved by the hon. Member for Oxford, West and Abingdon (Dr. Harris).

It does not need to be put on the record but I shall do so anyway, superfluous though it may be, and say that the majority of the Bill is excellent. It is a first-class piece of legislation that does long overdue work and is entirely worthy of support on both sides of the House. Were it not for the area covered by the grouped clauses moved by the hon. Member for Oxford, West and Abingdon, it would be well nigh the most perfect piece of legislation I have seen. The fact that it even approaches that state of perfection is very much to the credit of my hon. Friend the Minister. However, she may have erred by not allowing a conscience vote on this occasion.

I understand that there are financial implications, but this is a cross-party issue that so affects all parts of the Hose, as evidenced by the list of supporters of the new clauses. It is very seldom that we see the name of the right hon. Member for Bromley and Chislehurst (Mr. Forth) in the same company as the name of the hon. Member for Oxford, West and Abingdon and, on a humbler and far lower stratum, my own name.

Mr. Dalyell

One does not wish to shoot one's own troops or one's friends, but my hon. Friend says there are financial implications. Some of us think that the proposed scheme would save money in the medium and long term, rather than cost money.

Mr. Pound

The Father of the House, as ever, makes an excellent point. It is to his credit that he first raised the issue 33 years ago. I do not think that the measure before us will be weighed in the bankers' scales. I simply understand that there are implications with regard to the infrastructure and that the Government must, rightly and responsibly, pay heed to that matter.

In a gesture that I shall never repeat, I once offered to advise anyone who wished to nominate a Bill to be put before the House of Commons. That was on the "Today" programme last year, after I had been inveigled by the producer, Mr. Kevin Marsh. If the House is the echo chamber of the nation, the "Today" programme approaches that to a certain extent, though I do not in any way mean to compare you, Mr. Deputy Speaker, to the producer of the "Today" programme.

By far the most popular topic suggested from across the country was for a Bill precisely along the lines proposed by the hon. Member for Oxford, West and Abingdon. It was not until that rather unfortunate Christmas eve when we were hijacked by gun nuts from various survivalist magazines ranging from Auckland to Alabama that we lost out. I learned a good deal during that time. Principal among the things I learned was never, ever to do it again. The second thing I learned was what strength and depth of feeling mean.

The Minister referred earlier, as did the hon. Member for South Cambridgeshire (Mr. Lansley), who leads for the Opposition, to the good humour with which business had been conducted today. There was good humour in Committee, as there is on the Floor of the House. I cherish, admire and enjoy that good humour, but for many of our constituents what good humour there is is that of endurance—the bravery that they manage to summon up when they are looking at a very dark future. I mentioned my experience on the "Today" programme. I can also mention Mrs. Foley, a 33-year-old teacher and mother of a seven-year-old child, and a constituent of mine, who has cystic fibrosis and—she will not mind my saying this; she has given me permission to do so—may not live for many more years. She has good humour and immense courage and bravery, but I cannot simply look her and others in the eye and say that in this place, at this time and on this day, I did not do every single thing that I could to try to increase the number of donated organs and consequently the number of transplants, which would make such an enormous difference to people.

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I cannot even begin to bring to the table the depth of knowledge and expertise of the hon. Member for Wyre Forest (Dr. Taylor) and various other Members who have spoken, but I spent 10 years working in University College hospital and Middlesex hospital in London. I was the ancillary worker who had to take the relatives into the interview room after their boy had been killed on the A40 or had died in a car crash on Marylebone lane, and who had to stand by, get the tea and be present if the relatives felt faint. I sat in on scores of the very sort of conversations that the hon. Gentleman mentioned. On one or two occasions, yes, the doctor was insulted and called a ghoulish bloodsucker or a Frankenstein, but in the vast majority of cases the reaction was, "We hadn't thought of that; he would really have liked that. He may be gone, but someone else will live." I heard that said over and over again.

One of the arguments against what is proposed—I am not saying that the Government are suggesting this—is that gung-ho consultants in accident and emergency departments may be a little too anxious to record brain stem death. Consultants in A and E departments seem the most unlikely group of people to want frivolously to go through the enormous amount of paperwork that such a transplant would involve unless it was the most serious possible case and death had been confirmed. My hon. Friend the Member for Linlithgow (Mr. Dalyell) spoke about nightmare cases such as the kidney shuffle across east London, which we remember, but I cannot envisage any case in which an A and E consultant, a registrar or anyone in accident and emergency would act prematurely or in breach of their primary Hippocratic oath because of the prospect of gaining an organ for transplant. I simply do not see that happening.

The Government have said—and I support them—that one solution is to increase the number of people carrying donor cards. I agree, and I had a great deal of sympathy with my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) when he called for a Green Paper. The difficulty is that for every France that the Minister raises, I can match it with a Spain and trump it with a Belgium. We can go right around Europe and talk about different cases, interpretations and levels of statistical analysis, but at the end of the day, perhaps, we have to convince the non-experts—the people such as my constituent, my neighbours and, frankly, myself. I simply cannot understand how my constituent would have a better chance of living if she were Belgian rather than British, how we in this country cannot manage what our fellow Europeans can manage so well, and how, as was said earlier, a vitally needed organ can be buried or burned while someone else is dying for it. This seems the most simple and elementary matter of demand and supply. We are simply not maximising the supply, whereas the demand is increasing exponentially.

If we were to place cards in GPs surgeries, as has been suggested, I wonder how high the take-up would be. Nowadays, Gps—there are many in the House, and they can doubtless speak with far more authority than I can—tend to have about eight to 10 minutes to see a patient. Can anyone imagine a GP talking to a patient and saying at the end of the consultation, "Yes, everything is fine; no trouble at all. By the way, have you thought about carrying a donor card?" The patient may wonder about the secret, subliminal message that lies behind that statement. If my hon. Friend the Member for Dartford (Dr. Stoate) were involved, the message would not be subliminal, because he would probably force the patient to take a donor card.

I am a strong proponent of compulsory national identity cards, as are most people who care about the safety and integrity of our nation. We face the prospect of issuing such cards, and that offers the perfect opportunity to link what the hon. Member for Oxford, West and Abingdon refers to as "illiberal legislation" with this liberal legislation. Including an opt-out on ID cards is a remarkably sensible idea.

My hon. Friend the Member for Enfield, North (Joan Ryan) has displayed an extraordinary degree of scientific understanding and great sensitivity in the long conversations in which other people and I have expressed our concerns. I am extremely grateful for her understanding and sensitivity, and I respect and admire her and the Minister for spending so much time on the matter. However, the problem is that the Government are squeamish.

Some hon. Members are simply not prepared to argue the case for a national system of donations, and some are terrified that the tabloid press will come up with stories about Frankenstein, Dracula and Burke and Hare—I genuinely believe that that concern informs much of the language in the explanatory notes. By arguing the case for a national system of donations—I accept that I am moving into uncharted waters—we ask people to recognise that each of us is a member of the same national community, and that we have the opportunity to give as well as to receive. I recognise that the area is difficult, but we must examine it because it lies at the core of the issue

Mr. Tony McWalter (Hemel Hempstead) (Lab/Coop)

My hon. Friend mentions the prospect of the press taking up the cudgels on the misuse of the new rule in the new clause, but they might also take an interest in other cases. An 18-year-old friend of mine died at Christmas in Papworth hospital, while waiting for someone with a donor card to die, when we all knew that many other people, whose organs would have saved that boy's life, were dying.

Mr. Pound

I thank my hon. Friend for that comment. Individual cases are one of the hardest points in the debate, and they are one of the factors that make objectivity so difficult—I realise that I have mentioned an individual case myself. Sometimes hon. Members examine the actuarial rather than the actual and the theoretical rather than the real. No hon. Member is untouched by experience of someone dying for the want of a transplant, and we have all met people in that situation in our family lives, our surgeries and our communities. Some of us strive for objectivity, and some of us are more successful than others in achieving it.

I have immense sympathy for the constituent of my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), and I know how the family must have felt. This afternoon, however, we have it in our gift—I use the word "gift" advisedly—to turn back the tide. Imagine sending to the nation the message that we are all our brothers and sisters' keepers, and that we have a mutual responsibility. The tabloids may come up with lurid examples, but, please God, we do not need their permission to legislate.

I ask the Government seriously to consider the new clauses, which have been crafted with great skill and which touch an area of concern right across the country. If they were to reconsider the matter, whether in the form proposed by my right hon. Friend the Member for Holborn and St. Pancras or in any other form, they would not only make friends but save lives, and there can be no higher or finer calling than that.

Mr. Dalyell

On a point of order, Mr. Deputy Speaker. I hope that this is in no way taken to be a criticism of, let alone to be offensive to, the Minister or the Government Whip, but from time to time in the House of Commons the tenor of the debate—the cross-party feeling—is that something should be altered and that only a Secretary of State, who is a Cabinet Minister, can make a decision on it. I do not know what he has to do that is more important than to listen to the House of Commons on this matter, but should he not at least be told what is being said, in the light of which he may wish to suggest a relaxation of the Whip?

Mr. Deputy Speaker (Sir Michael Lord)

As a very senior and experienced Member of this House, the hon. Gentleman will be aware that that is not a matter for the Chair. Everybody has seen today's Order Paper, and it is entirely for the Government to decide whom they wish to put forward for the Front Bench.

Mr. Wilshire

It is something of an irony that the speaker who immediately follows that point of order by the Father of the House is an Opposition Whip. I make it clear that I want to state only my own personal views and that although I do not seek to dragoon anybody into voting in any particular way, I hope that my personal arguments might persuade Members on both sides of the House to oppose the new clause. In response to the comments of tho hon. Member for Ealing, North (Mr. Pound), nothing that I say will be coloured by what the media may say about me or about anybody or anything else.

On Second Reading, I explained why I feel so involved in this matter and have such strong views about it; I therefore see no need to take up the House's time by repeating those remarks. For the purposes of this debate, suffice it to say that when my daughter died all those years ago, I regret that I was not asked and I was relieved that I was not forced to object. Those two points have always driven my views in these matters.

I entirely accept that the hon. Member for Oxford, West and Abingdon (Dr. Harris) is motivated by finding a way to help other people, as is every other Member who has spoken or will speak in this debate. I want them to understand that those of us who take a different view are not against helping others. If there are ways in which we can improve the number of organs that are available, count me in, provided that we do not go down the route, as I see it, of the ends justifying the means.

I accept that improvements are required, and I will support them, but I will not support this particular proposal. I do not believe that it is selfish to put the deceased or the deceased's family ahead of a third party. To suggest that those of us who take that view are being selfish is unkind and unfair, because we do not see it like that. The hon. Member for Oxford, West and Abingdon made the fair point that on some occasions the deceased leaves the express wish that his or her organs may be used, yet in some circumstances the relatives can object. I would have no difficulty in buying into an amendment that stated that a clearly expressed wish of the deceased stands above all else. I can accept that—I am not opposed to all change. However. I find it difficult to accept the hon. Gentleman's suggestion that we are best guessing. As I said, perhaps we would make fewer mistakes under his arrangements, but we would not eliminate all mistakes. If the hon. Gentleman does not like best guessing, the amendment retains it but in a different form.

5.45 pm

The hon. Gentleman justified the new clause by saying that he envisaged many opportunities for people to opt out. If there are to be such opportunities, it follows that there will be many opportunities for people to opt in. I happen to prefer opting in to opting out. He also said that the new clause would take the decision making out of the hands of relatives. Other hon. Members have explained why they believe that that is a kind thing to do, but from my experience, it is not a kind thing to do.

I accept that some people who are faced with the traumatic experience of someone who is dear to them dying will find it almost impossible to cope with such a request. It would genuinely add to their grief. However, others—I have spoken to some over the years—somehow found it helpful in a moment of appalling grief when someone said, in the middle of catastrophe, "Here is something that you could consider doing that would perhaps make the grief more bearable." Although some people would find the request almost impossible to handle, others would find it helpful to be asked.

I am deeply sorry that nobody asked me at the time. However, I think that I know myself well enough to say that if any organs had been removed from my daughter and I could have had the opportunity to object but the matter was taken out of my hands, I would have been outraged for the rest of my life. I appreciate that children are exempt and I shall comment on that shortly.

Let me consider the text of the new clause because some points might help colleagues to form a view. Subsection (1) of new clause 1 refers to part of a body of an adult lying in a hospital". I appreciate that, when I explained what happened to me, I was referring to a 12-year-old daughter. Some debate took place about whether an adult should be considered to be 16 or 18. However, I sense that those who support the new clause hold that it is wrong, insensitive or somehow not right to include children in it, and we now have a definition of children. I gently say to the hon. Member for Oxford, West and Abingdon that everyone is somebody's child. If it is wrong to include a child who is under 18, is it not also wrong to include a 40-year-old child when a mother or father who are still alive could have the same strong views about their child? The child argument does not get us very far.

Dr. Evan Harris

I did not want to interrupt the hon. Gentleman, but there is a distinction. Law—including the measure—recognises that autonomy and competence to consent come with adulthood. Some pragmatism has been applied in that the measure does not allow a Gillick-competent child to benefit—if I may use that word, given that there would be no benefit to that child—from presumed consent because a line is clearly drawn at the age of 16. Although everyone is someone's child, I urge the hon. Gentleman to consider the recipients of transplants and their relatives. They would not want to die or their relatives to die because of difficulties caused by someone who did not want the organs of their adult child to be removed even if that child did.

Mr. Wilshire

Of course I understand what the hon. Gentleman is saying and I appreciate that, when dealing with legislation we must, on occasions, take a legalistic view of it. However, the significance of the debate about whether this should be a free vote or a whipped vote is that it flags up the fact that we are in the territory of personal, subjective beliefs and convictions, rather than that of what the lawyers might say. I understand that there have to be legal definitions in this regard, and I am grateful for the fact that the age has now been set at 18, but if we are going to invoke the concept of the child and its parents, I must emphasise that I believe that we are all somebody's child. That is all that I am saying, and it is a subjective point which the hon. Gentleman may or may not set much store by.

New clause 1(2)(e) is at the heart of this proposal, in that it states that unless someone has registered an objection, things can go ahead. I would support the hon. Member for Oxford, West and Abingdon in this if he were to say that this provision involved a required request rather than presumed consent. If we were being asked to legislate that people must be asked, I would be with him. I understand the point made by the hon. Member for Wyre Forest (Dr. Taylor). It is incredibly difficult to approach people at the moment of a bereavement, and I am not sure that it is any easier to say "Please may we?" than "Do you mind if we do?" I would have thought that both were equally difficult. All that I can say is that it would sound so much kinder to be asked, "Do you mind?" rather than, "Do you object?" It would be so much more considerate of the views of the bereaved to ask whether they minded, rather than asking whether they wanted to object. Someone could end up in a much worse position for the rest of their life if they had to say, "I'm against this", as opposed to being able to say, "I'd rather not say yes at the moment." To object could leave a scar, whereas saying yes or no to the question "May we?" might not do so.

Dr. Evan Harris

Again, I hesitate to interrupt the hon. Gentleman, but I want to make it clear that the proposal would not involve any such question being asked. People are sometimes scarred by having objected because they felt that their relative had suffered enough, for example, or for similar reasons that are often cited, but this measure would remove that possibility because they would be asked whether the deceased had made any objection. If they had, the relative would be notified that the plan was to use the deceased's organs and would be given an opportunity to volunteer an objection. However, they would not be prompted to make an objection, because consent would be presumed if the deceased had made no objection.

Mr. Wilshire

Again, I understand what the hon. Gentleman is saying, but I come at this from a somewhat different angle. However, the object that we are both trying to achieve is the same.

New clause 3(2)(b) states that people may signify an objection to the removal of a relevant organ for a reason specified in subsections (3) to (5). I tried to say in an earlier intervention that, if we start getting the law involved in these matters by saying that there has to be "significant distress" involved, I cannot get my mind round how we should deal with such situations. If we are saying that any asking at this moment of maximum grief is wrong, it would simply add insult to injury to try to measure the amount of distress involved. If the hon. Member for Oxford, West and Abingdon is suggesting that there can be reasons for relatives to object, I could begin to go along with him if he also said that all that the relative needed to do was to say no, rather than have us try to measure whether that was reasonable or unreasonable, or whether it was a frivolous "no", a moderately held view or a deeply held view. If we could just settle for a yes or no, that would be the best way of going about it.

Another aspect of new clause 3 that worries me is that a relative can be overruled if it is not reasonably practical to communicate with him within the time available". That seems to be an invitation to lawyers to wrangle over what constitutes a reasonable amount of time, or a reasonable amount of effort to find someone. We would eliminate all that by opting for informed requests, because someone would then have to be asked, and they would have to be given the opportunity to answer. If that is thought to take too long, we return to the argument about whether all this is being done in the interest of the third party whose life could be saved, or of the deceased and their family. I can only say that one has to take one's own view on that.

I have always done my best to argue this case as best I can, but in the end, it is a subjective judgment. All that I can say to the House is that I remain opposed in principle to presumed consent. For me, the way to achieve our objective is through more education and discussion and through encouraging and helping members of the medical profession to make these requests. All of that is kinder and gentler, and it will achieve the same result in the end.

I have raised some practical issues about the implementation of this proposal, and if the House votes to accept the new clause, for whatever reason, and the Government find themselves in another place with this provision in the Bill, will the Minister consider amending it to take some of the sting out of it for those of us who are against it in principle? I am prepared to back change, provided that it helps not only other people but the family involved. In such circumstances, the family comes first. If we work at this, and if we encourage people and explain to them what we want to achieve, I believe that more transplants will become available on the NHS. However, I do not want to see presumed consent or the idea of society taking over the possession of the deceased's body.

Dr. Howard Stoate (Dartford) (Lab)

I am grateful to have caught your eye, Mr. Deputy Speaker, in this important debate on an extremely sensitive and difficult issue. The House is at its best when it debates difficult issues that affect all our constituents, and I am sure that many, if not most, hon. Members will have had experience of constituents who are on waiting lists for transplantation and are in dire need of help, or who have relatives in that situation.

These are difficult issues for us to grasp, and I am grateful to the hon. Member for Oxford, West and Abingdon (Dr. Harris) for tabling the new clause, because it gives the House a good opportunity to discuss them. People have very strong views on them—we have heard opposing views being expressed here today—and take them seriously. They have clearly thought about them carefully, because they affect us deeply.

As someone who still practises a certain amount of medicine, I come across all sides of the argument. I have, spoken to many people about carrying donor cards, which are available in the vast majority of GPs' surgeries, and I am sure that a large number of my GP colleagues discuss the issue with their patients whenever they get the opportunity, and encourage them to carry the cards. I have also spoken to people who have been asked whether they would allow a deceased relative's organs to be used for transplantation, and I have had patients who have benefited from transplantation themselves.

The economic argument is an interesting one. At one time, I had the distinction of being the most expensive GP in the country, because I had a patient who was on an extremely rare and expensive immunosuppressant drug while waiting for a heart-lung transplant, and the cost of it sent someone with a black briefcase down from the Ministry to talk to me about why I was spending so much of Her Majesty's money on this patient. Of course, once that patient had had their successful heart-lung transplant, my drug bill went back to somewhere approaching the mean. So there are economic arguments on both sides, and many interesting ways of looking at the issue.

The public have extremely strong views on this matter, but the problem is that they do not always express them. I have been a doctor for many years, and it has become apparent to me that, although people may have deeply held convictions in this regard, they often do not know how to talk about them or who to talk about them with. Just because someone does not opt out or in does not necessarily mean that they do not have deeply held views on the issue.

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I chair the all-party group on men's health, and one issue that comes up time and again is that men in particular find it extremely difficult to seek help when they have a genuine health problem. Often, they simply do not come forward until the disease is well progressed or they present late with very serious illnesses such as heart disease or cancer. When they do present, they often suffer worse outcomes and die younger as a consequence.

Just because somebody does not necessarily express a view on something in public does not mean that they do not hold very strong views about it. That is why I have real problems with a presumed consent clause. I understand all the reasons that were cogently put forward by the hon. Member for Oxford. West and Abingdon, and I have great sympathy with his arguments, but I have real concerns and I shall vote against his new clause, for reasons that I too hold deeply.

Having spoken to many patients—many people who could be donors—I know that people have not a superstition, but a deeply held view about what should be done with their body. They still consider their bodies their property—even after they have died, when it could be argued that the property belongs to nobody as the person has left and the body is a corpse. However, that is not the case in the mind of a large number of people who still feel very strongly. People make elaborate plans for their own funerals and how their remains should be dealt with because they have such deeply held views about what should happen to them even after death.

I listened carefully to the arguments relating to the need to have more organs available. Nevertheless, I must show great respect for people whose unspoken views are often deeply held.

David Taylor

Would my hon. Friend care to say why his patients—often men whom he says have deeply held views about their own bodies and what might happen to them after death—in many cases fail to communicate that information either to relatives or via any system for registering their wishes?

Dr. Stoate

That is an interesting question and my hon. Friend has raised an important point. At a recent meeting of the all-party men's health group, a patient was prepared to come forward to talk about his experiences and why he was such a late presenter. This chap had had rectal bleeding for 10 months before plucking up the necessary to go and see his GP to discuss it and get something done about it. It would be quite wrong to say that he did not care about his rectal bleeding, because clearly he did care deeply about it.

This chap kept coming up with all sorts of reasons to put the visit off and not to go, saying, "I'm under stress at work and just having an off day. It's probably piles. It's nothing to worry about." He managed that self-deception for 10 months before admitting it and going to his GP, who said, "Actually, mate, you've got bowel cancer." Fortunately, even though he had waited 10 months, he was able to have a successful operation. As far as anyone can tell, he has been cured. The fact is that men find it exceptionally difficult to talk even to their closest relatives about these deeply personal issues.

We can call that machismo, male pride or anything we like—it is not all that well understood—but there is no doubt that that is the situation. Over the decades, I have had patient after patient after patient who left coming forward to the doctor very late. When they do come, they often do not know what they want to say and it is difficult to coax out of them the real reason for their visit. They will come along to talk about their skin problem, but they really want to talk about their psychosexual difficulties. Getting round to that is very difficult indeed.

My point remains that people have very deeply held views that they cannot, will not or would rather not discuss with their relatives, friends or medical advisers. For that reason, I have real problems with an opt-out scheme that would presume that just because people do not come forward they are implicitly consenting to this process. I shall give an example that Members of the House will well understand.

In local elections, it is common for only 25 or 30 per cent. of people to turn out to vote. Does that mean that the other 70 per cent. have no view? Clearly it does not. Any Members who have been on the doorstep and talked to people as they go round their constituency will know that people have exceptionally deeply held views, but they do not necessarily think that voting is the way to express them. If the House were to say, "If 70 per cent. don't vote, we must presume that they entirely agree with Government policy because they have not voted against it," that might be nice in that it would provide a warm glow and allow me to think that my constituents like me more than they probably do, but we would not be doing ourselves justice in making such an assumption.


I am listening with great care to this argument and I hope my hon. Friend will forgive me if I say that I find it mildly patronising. Many people find it difficult to articulate their views, but if they are asked about something as important as looking after their health they find the words. They may not find the right ones and they may not use the words that he and his profession would recognise, but most manage to say what concerns them.

If my hon. Friend really is saying that because there is a problem with communication, we cannot allow such legislation to go forward, I say to him that there is a major difference between voting in an election whatever happens, people get an interesting House of Commons whether they vote or not—and the issue we are discussing, which is rather more significant.

Dr. Stoate

My hon. Friend makes an important point. I always respect what she has to say as she holds strong views on these issues, and I welcome her intervention, but I do not agree. Having been a doctor for a long time, I know that, unfortunately, people do not find the words even when they know themselves to be severely ill. Any doctor in the House would, I am sure, be able to echo that. The experience is that many patients do not present with life-threatening illness often until it is too late. For all sorts of reasons that I have already outlined, that is the case. People do not express their views to their friends, their family or their doctor when they would perhaps otherwise like to do so. For those reasons, I feel strongly about this.

Having said that, we all want more organs to be available for transplantation as it is grossly unacceptable that so many people should be suffering, and even dying on a waiting list, because of a lack of available organs. That is a tragedy. It is the duty of the Government and the House to do all they can to increase the number of organs that are available for transplantation, but I happen to think that this would be the wrong way to do it.

We need a far more sophisticated education programme and we need to make it far more of a duty for doctors, nurses, health professionals, ambulance crews, those responsible for public information campaigns and those who supply information through the media to talk up the reason why people should be donors. An example is the blood transfusion service, which, through a combination of clever advertising and public awareness campaigns, generally manages to ensure a sufficient supply of blood freely given to save the lives of others. The same could be done with a carefully worded public awareness campaign on this issue.

Mr. Paul Burstow (Sutton and Cheam) (LD)

Back in April 2000, the hon. Member for Broxtowe (Dr. Palmer) introduced a ten-minute Bill on presumed consent for organ transplants and the hon. Gentleman was a sponsor of it. It is entirely valid for a Member to reach a different conclusion at a later stage on the basis of evidence, but I have not heard that evidence so far. I wonder why he has changed his position.

Dr. Stoate

That is an interesting point and I am grateful to the hon. Gentleman for bringing it up. I supported my hon. Friend's Bill because I think that such things should be debated in the House. I was keen for his Bill to be discussed, even though it was only a ten- minute Bill, because we should have the opportunity, albeit for a mere 10 minutes. to raise the issue so that it can be flagged up and the public can be aware of it.

David Taylor

My hon. Friend is most generous in giving way yet again. Is he saying that, with more imaginative and innovative approaches—for example, ones similar to those that organisations such as the National Blood Service tend to use—to promoting actual consent, he would be confident that sufficient had been done to reduce the large and widening gap in respect of the number of people waiting for an organ transplant, which has grown by more than a third in 10 years?

Dr. Stoate

That is the question. I do not know that that would bridge the gap, but it should be tried. We do not do enough to promote the benefits of carrying organ donor cards. We have failed to some extent, as a Government and as a House, in not doing what we could to promote the scheme. I would like everything possible to be done to ensure that people are aware of it and are encouraged to carry cards.

Dr. Julian Lewis (New Forest, East) (Con)

I have been listening to what the hon. Gentleman has been saying with a lot of sympathy. Over the years, I have carried various donor cards, which became increasingly dog-eared and were eventually discarded. Also, at various times, I have signed various forms. Why, in the 21st century, when we know so much about network databases, does it still seem unclear to at least one Member of Parliament whether there is a national database, which, if people signed up to just once to give their organs, could put an end to the matter and save an awful lot of distressing questions and answers?

Dr. Stoate

The hon. Gentleman raises an interesting point: there is a national database, which I gather is based in Bristol, but it is not well publicised. That is the problem—the public do not know of its existence.

Dr. Evan Harris

The hon. Gentleman is being uncharacteristically unfair on the Government, who have introduced a number of new initiatives to promote the organ donor register and the donor card. The fact is that those are not working well enough. People sign the register in ever-increasing numbers, but the number of donors is going down. Does he accept that that is probably why Elizabeth Ward, who was the inventor of the kidney donor card, and founder of the British Kidney Patient Association, supports these new clauses—she knows that an opt-in scheme could never work well enough to save as many lives as we could under a presumed consent scheme?

Dr. Stoate

That matter should be tested, and we need to do more. The fact remains that we are not doing enough at the moment to promote the scheme, and I am sure that we could do a lot more.

I will not detain the House further. I agree entirely with increasing the number of organs available for transplant, and I know that patients of mine would benefit from readier availability. I am sure that everyone in the House would welcome that. The question is: how should it be done? My view is that an opt-out scheme is a step too far, and that public opinion would oppose it.

Mr. Desmond Swayne (New Forest, West) (Con)

I congratulate the hon. Member for Oxford, West and Abingdon (Dr. Harris) on his new clause, and on the powerful argument that he used when he moved it. He is assured of my support in the Lobby tonight.

I wish to speak to new clause 5, which stands in my name, and to which the hon. Member for Oxford. West and Abingdon has tabled an amendment, which, I accept, very much improves it. I see new clause 5 as complementary to new clause 1 or any other means by which we could secure a greater number of potential donors, be it an increase in the use of donor cards or whatever. That is because increasing the number of donors does not necessarily mean an increase in the number of usable organs. That is the key point. Members have referred to the experience of Belgium, which has seen a 30 per cent. increase in the number of successful transplant operations, and which has a system in place akin to that proposed in new clause 1. I do not doubt that it would not have achieved that success had it not also had a system of elected ventilation in place.

Elected ventilation is the subject of new clause 5. Members will be aware of precisely what elected ventilation means, as they will all have received a letter from Mr. Charles Curry, about six weeks ago, explaining it. It is the procedure by which someone is put on a ventilator not to make them better or in the hope that they will recover but purely to preserve their organs for transplantation. It now turns out that in this country, that is unlawful. Some four years ago, Mr. Jetmund Engeset, the surgeon responsible for transplant operations in Aberdeen, came down to meet Members and assured us that, were elected ventilation available to him, he could increase the number of successful transplant operations in Aberdeen by 100 per cent. I was also impressed when Professor Terry Feest came to the House to discuss elected ventilation, because, until 1994, he used it at Exeter and doubled the number of successful transplants carried out. Only when he published his results in The Lancet and a discussion about elected ventilation ensued was it discovered, on advice from the Department of Health, that it was unlawful.

As I understand it common law requires that a procedure can only be carried out on a patient if it is for his benefit. Clearly, if someone is ventilated purely to preserve their organs for transplant, that is not for their benefit but for someone else's. It therefore falls foul of the law. Elected ventilation was therefore discontinued, with a consequent reduction in the number of successful transplants and organs that became available.

6.15 pm

It seems to me that we have an opportunity to correct that situation. We are told, however, that it is not as important as it once was: because of the increasing number of what are called non heart-beating donors, as technology has moved on, we can afford to take the organs out of the cadaver and use them—we do not need to keep people ventilated to have the organs fresh, if I might use that term, from a heart-beating donor. That is an overstatement, however: we are now able to get a certain number of kidneys and livers from cadavers, but overwhelmingly, it is much better to have them from heart-beating donors. At the moment, there is no prospect of getting lungs and hearts from non heart-beating donors. Are we to write those off, and say that we do not need the procedure? I would suggest not.

Incidentally, there was a discussion some three weeks ago, and a great deal of media coverage, about the shortage of transplant surgeons that now arises because of the antisocial hours associated with that branch of the profession. Organs become available at a time of night or day that is not suited to anyone's convenience. Nevertheless, it seems to me that the precipitate decline in the number of surgeons, which is consequent on the unpredictability of that profession, would be assuaged at least to some extent by reintroducing the practice of elected ventilation.

There are disadvantages to elected ventilation. One of the arguments made against it is that it makes use of desperately needed intensive care beds. That argument will continue, although many will argue that it does not require intensive care beds, and that what it requires is less than the high-intensity care bed. We as parliamentarians, however, should not intrude on that argument. It is for clinicians to argue about what is the best use of a particular bed at a particular time, and it is not for us to frame laws and prevent people from doing things as a consequence.

There is also some disquiet among members of the BMA that elected ventilation can in certain circumstances give rise to the persistent vegetative state. Again, clinicians can argue about that and reach conclusions among themselves. It is not a matter for Parliament in framing the law.

We had an effective way of increasing the number of successful transplants. When it was in use, it doubled the number of effective transplants.

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?

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.

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 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.

The Secretary of State for Health (Dr. John Reid)

The answer is simple. It is because the decision about one's own body should be for the conscience of individual citizens. It is not for his Parliament, by free vote or otherwise, to impose on individuals a requisition of their bodies after death for the use of the state. That is why there is no free vote. We are giving the freedom of conscience to the people of this country, and we are not prepared to work on the assumption that Parliament should dictate to them that their bodies belong to the state after death.

Rob Marris

I am grateful to my right hon. Friend for clarifying that point. I found his intervention very helpful, and we may achieve more clarify as the debate continues. I started the debate broadly in favour of new clauses 1, 2 and 3. As the debate has continued, I have changed my position somewhat, partly because of such points as the one succinctly made just now by my right hon. Friend. The debate evokes difficult moral dilemmas for many people and, in that sense, it is a moral decision, not a political decision. I get the feeling that expediency is taking over: we have to change the regime because we cannot get enough organs. I am not entirely convinced that that is the right way to proceed morally, nor that it would work in practice.

I spoke to John Cox over the weekend and he put the argument, forcefully and cogently, in terms of cost. Other hon. Members have adverted to the cost comparison between a kidney transplant and the need for immunosuppressants thereafter, and the continuation of dialysis. Those are interesting arguments, but they are ones of practicality and expediency. They are brought in to try to sway the moral balance, but that is mixing apples and oranges.

We need to consider what has happened to the national organ donor register. By the end of 1995, 2.25 million people had joined the register. By the end of 1999, four years later, that figure had roughly tripled, to 7.5 million. By November 2002, the figure had passed 10 million and now, a year and a half later, it has passed 11 million. The number is increasing and I agree with my hon. Friend the Member for Dartford, who practises medicine, about what we—as a Government and a society—should do to encourage further increases.

David Taylor

The trend of increases is encouraging, but we have some 45 million adults in the United Kingdom. The number on the register is only some 25 per cent., which suggests that 75 per cent. of potential donors are untouched by the scheme. How might we increase the numbers signing up to the register?

Rob Marris

We could do more, although I do not want to sound like a hand-wringing politician who says, "Something must be done". I also question my hon. Friend's assumption that the 75 per cent. who have not signed up to the register would wish to do so. That assumption may be unwarranted. It is possible—although, I concede, unlikely—that that 75 per cent. have considered the issue seriously and decided not to opt in and have their organs taken. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned surveys on that point, but we must be careful not to jump to conclusions about who might wish to participate in the scheme.

We cannot assume that people who have not signed an organ donor card—I first did so in 1974, when the card applied to kidney transplants—simply do not know about the scheme. We have used the distribution mechanism of the DVLA and doctors' surgeries, so many people know about the scheme and have decided not to participate.

Mr. Kevan Jones

Publicity is widespread and most people know about the scheme, but it takes a conscious effort to contemplate one's own mortality and opt into the scheme. Does my hon. Friend agree that the ultimate point is that it is down to the individual what happens to their body after they die?

Rob Marris

My hon. Friend makes a powerful point. Just as the hon. Member for New Forest, East was not aware that there was a national register, I did not know that it existed until I met my constituent, John Cox, some four years ago, and I had carried a donor card for nigh on 30 years. I think of myself as a reasonably educated person, and there are probably many such people who still need to be reached by the scheme. I got a driving licence 30 years ago, so I had never been told about the scheme by the DVLA.

Dr. Evan Harris

The hon. Gentleman rightly rejoices that the number of people on the organ donor register has increased from some 2 million in 1995 to 11 million now. Does he accept that, despite that increase, in the same period the number of cadaveric solid organ donors has fallen from 875 to 710 a year? That is one of the reasons why John Cox and his daughter, Christine Cox, wrote to me to say—as they confirmed in the Sunday Express—that they support the new clause. They do not think that the organ donor register for which they campaigned is doing the job well enough.

Rob Marris

The hon. Gentleman is more qualified than I to interrogate the cadaveric figures. Does the NHS have the infrastructure to deal with potential donations of organs? The problem may be bottlenecks in the NHS that extra Government resources will address. I do not know whether that is the case, and perhaps the hon. Gentleman can tell me.

Dr. Harris

The most likely reason for the decrease is the relative refusal rate, which has gone up from 30 per cent.—shown in Sheila Gore's study in 1993—to nearly 50 per cent., shown in the UK Transplant potential donor audit. That is why the figures have gone down despite the organ donor register. It is also why we need to recognise that the present system is not working and to change to the new system.

Rob Marris

That is an interesting intervention. If the rate of relative refusal is increasing, it suggests that increasing numbers of people are concerned about organ donation. The new clauses would therefore go against that trend.

Dr. Harris

I understand the point that the hon. Gentleman makes, but at the same time surveys of public opinion show that between 80 and 90 per cent. of people are willing for their organs to be used. What has changed is the response of grieving relatives, not the wishes of individuals, which—as the hon. Member for North Durham (Mr. Jones) pointed out—should be paramount in the case of their own organs.

Rob Marris

It is difficult to tell from survey evidence, as we know from opinion polls in elections. When relatives are asked, the trend is in the opposite direction to that which the hon. Gentleman wants to see.

Dr. John Reid

It is worth checking when the decline in relative refusal rates started. I think that it is recent, and one of the reasons may be the shock and horror felt about what happened at Alder Hey. If the increase is the result of something that was imposed on people against their will, it is another reason why we should be very careful about the decision we make tonight.

Rob Marris

I thank my right hon. Friend for that intervention. When the Government respond to the debate, will they give us reassurance, which my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) sought earlier, about what they are doing in two spheres? What will they do further to promote the current system and to initiate public debate on the issue? The Government may say that they will do nothing and, from what my right hon. Friend said earlier, I suspect that may be the case. However, I should like to know what they would do to promote public debate, as one of the reasons why I shall not vote for the new clause is that I have sat through the whole debate on this group, which has focused on new clauses 1, 2 and 3—[Interruption.] I estimate that the debate will be over by 7.30, but that is a matter for the House and for you, Madam Deputy Speaker. Were the debate to end at 7.30, the House of Commons would have spent three hours debating the issue—only three hours.

My hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) said that the subject had been debated endlessly and, yes, it has been debated a lot and has been the subject of private Members' Bills and so on. However, at every general election the composition of the Chamber changes: new Members enter Parliament. The House of Commons has not held a full debate on an issue that Members on both sides of the House accept is very difficult, in terms of both the moral and the practical questions. To tie the matter up by three new clauses—although they seem well drafted—in three hours of debate does not do it justice and it is not the right way for Parliament to proceed. When my hon. Friend the Member for Ealing, North (Mr. Pound) was talking about the new clauses, he twice referred to new clauses 1, 2 and 3 as a Bill. He is right; they should be a separate Bill, not tagged on to the Human Tissue Bill, which came about owing to all the horror of Alder Hey and so on. The two should not be mixed, which is exactly the discussion I had about three months ago with my constituent, John Cox, at the time of Second Reading.

Mr. Dalyell

A crucial difference between the 1970s and now is that the British Medical Association has changed its mind on presumed consent.

Rob Marris

I am aware that the BMA has changed its mind. The hon. Member for Oxford, West and Abingdon referred to that point when he was moving the new clause. It is important to take it into account but it should not be a determinant of the debate, nor—even though the supporters of the new clauses have the best of motives—should we be bounced into putting a Bill on organ donation and consent relating thereto into the Human Tissue Bill. We are mixing up those two things and we should not do so.

Dr. Murrison

The debate on this group has been far ranging. I begin by pointing out that the new clause will be the subject of a free vote for Conservative Members. I was interested to hear the Secretary of State's comment that he was taking a collective view for his party. However, we feel that the judgment must be made individually, according to conscience, which is why we shall have a free vote. I understand that the minor parties will do likewise.

Mrs. Dunwoody

I am sure that the hon. Gentleman will like to know that Labour party rules say clearly that on a matter of conscience Labour Members may vote as they wish.

Dr. Murrison

It is not for me to intrude on private grief. That matter is for the Labour party, which is not the subject of our debate today.

I want to address new clause 5, which was very well introduced by my hon. Friend the Member for New Forest, West (Mr. Swayne). He brought to the attention of the House a procedure that he believes could increase the harvest of organs for donation—that of elective ventilation. We heard earlier that the BMA had changed its mind about presumed consent; it appears that it has also changed its mind on elective ventilation. The procedure no longer has the support of the BMA, but I understand that the association welcomes debate of the issue—as should we all—and I congratulate my hon. Friend for bringing it to our attention.

Elective ventilation is an invasive procedure and is carried out purely to allow for the development of brain stem death and consequent organ removal. Although it was the subject of fairly positive guidance from the Department of Health in the mid-1990s, it was subsequently deemed illegal as it would be battery and could thus not be in the interests of the patient. How could it be?

The procedure introduces the possibility of harm to patients and my hon. Friend touched on that in relation to persistent vegetative state. Elective ventilation carries the possibility not of the development to which the procedure is geared but of persistent vegetative state, which is of course not in the patient's interest. Indeed, encouraging such a development is not in the interest of any of us. However, it is a risk of elective ventilation and we should bear that in mind.

6.45 pm

We should also bear in mind the pressure that the procedure would put on ITU beds and the emotional pressures for the staff of those units. ITU staff are very much geared towards curing people and the procedure would obviously not cure the person who was principally concerned—the person being electively ventilated. The procedure involves a certain mind shift for the people who staff ITU so well, and I do not think that it would attract universal acceptance from them.

My hon. Friend the Member for New Forest, West commented on the Exeter study carried out in the mid-1990s. Over the weekend, I went to the trouble of looking up the old papers on that. I looked at the report and the extensive correspondence that followed, which was not universally appreciative of the procedure. At that time, there was much controversy about its value and acceptability.

One problem is the definition of the point of apnoea—a person's last gasp—which is necessary in order to determine exactly when one institutes elective ventilation. The definition is not as straightforward as Members might suppose; it can be difficult at times to assess when that point has occurred.

Mr. Dalyell

In previous legislation, that problem was addressed by putting the decision in the hands of two clinicians, once clinical death had been established, neither of whom was a renal surgeon and likely to benefit. Is not that a satisfactory definition?

Dr. Murrison

But at what point does one define death? Is it the point at which somebody's heart stops, as is usually the case, or should brain stem death be the definition? Many of the problems relating to the studies in the mid-1990s arose from Exeter's attempt to redefine the point of death. From my experience, I know that sometimes it is extremely difficult to do that. People do not usually take a dramatic last gasp; it is far slower than that and the point of apnoea—as other medically qualified Members will know—is actually the point of asystole, when one can no longer detect a pulse.

Dr. Harris

I agree with the hon. Gentleman's analysis. The BMA ethics committee certainly opposes elective ventilation in the circumstances set out under the new clause, but what if the patient had given an advance directive permitting elective ventilation, knowing of the possible risk and that their best interests might not be served, so that their wish to donate organs could best be met? That question is addressed in our amendment to new clause 5 and it is probably worth further consideration.

Dr. Murrison

I am grateful to the hon. Gentleman for that intervention and I welcome his amendment. It makes a flawed measure a little bit better. Of course, such an advanced declaration would at least allow the professionals involved the confidence that they were acceding to an individual's wishes, but that is not quite the same as the specific consent that we are talking about generally in this group of new clauses and amendments.

People would need to know specifically whether they were consenting to such a procedure, because it is quite separate from the sort of things that they might envisage or expect under the consent procedures that we are debating more generally. However, with respect to the hon. Member for Oxford, West and Abingdon (Dr. Harris), amendment (a) does not necessarily address some of the other difficulties that I have raised, although I accept that—with respect to my hon. Friend the Member for New Forest, West—it would make new clause 5, which is flawed, a little better.

The more general debate relates to presumed consent and new clauses 1 to 3. The most telling remarks that I read on that issue come from James Kennedy, who is director of the Royal College of Nursing in Scotland. He said: The tragedy of the recent organ retention scandals has made it absolutely clear that it is entirely wrong for healthcare professionals to ever presume consent. Working through the Bill, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) and I have done these past few months, it has been clear that consent is central to the measure. Indeed, the Bill is all to do with consent, as was pointed out by the hon. Member for Wrexham (Ian Lucas). Consent is the common thread that runs through the Bill. Indeed, there is no point in it if we do not address consent and put it at the very heart of what we are debating. The events at the BRI and Alder Hey and the Isaacs inquiry all lead to the Bill, and they all address problems to do with consent, yet we are dealing with a group of new clauses and amendments that—with respect to the hon. Member for Oxford, West and Abingdon, whose intentions are entirely sound and accord with my own—would cut across the general direction of travel that relates to informed consent.

I shall now move on to deal with some of the specifics of my disquiet about the measure. The hon. Member for Oxford, West and Abingdon referred to a number of international comparators. My word, there are a lot of them and they bear close scrutiny, but they do not all point in one direction. We could perhaps consider Sweden, which has the sort of system that he recommends, yet its organ donor rate is no greater than our own. We could consider Brazil, which has a big population, and note that it went down the route of presumed consent, but that it rescinded that measure some time later after popular pressure. We could consider the marked regional variations that occur in countries with certain systems—our own and those that have an opt-out system. We must ask why that is, and I suspect that it is because of differing practices in those countries, thus suggesting that more needs to be done to consider why certain areas have a better harvest rate than others. Clearly, the differing rates are not to do with the overall system that applies in those countries.

The system of required request—a clumsy term, but nevertheless perhaps a useful procedure that applies in the United States—might deserve a look. It is defined thus: That it shall be illegal, as well as irresponsible and immoral to disconnect a ventilator from an individual who is declared dead following brain stem testing without first making proper enquiry as to the possibility of that individual's tissues and organs being used for the purposes of transplantation. In other words, the onus is put on those involved to ask the question and establish whether a person is suitable to participate in transplantation.

My suspicion—it is more than a suspicion, as it comes from personal experience—is that, in the heat of the moment, the last thing that a busy practitioner wishes to be involved in is the difficulty of approaching bereaved relatives with such a difficult situation. We have discussed whether more or less distress may be caused to all involved by opting in or opting out, but at the end of the day such things are deeply distressing both for relatives and for practitioners. However, we must press the issue as far as it relates to those who are employed by the NHS. It may very well be that a required request formalises what I know is best practice throughout the NHS in considering whether individuals might be suitable for transplants.

I am also against the measure because the people who opt out will be a skewed population. We know that the articulate, the middle class and those from certain sectors of our society are keen on taking affirmative action of one sort or another. It is likely that those who perhaps do not find it easy to articulate a view or, indeed, whose lives are chaotic in a way that would make such issues a lower priority for them might be disadvantaged as a result. We should remember that silence may also indicate a lack of understanding, rather than agreement with a certain policy. That is important to bear in mind. We also need to bear in mind, of course, the fact that the UK transplant community is pretty well split on the issue.

Of course, we need to bear in mind the views of UK Transplant itself, which is not in favour of presumed consent and offers other mechanisms as a way to increase our harvest of organs. One can think of non-heart-beating donors or living donors. It may be worth while considering the electronic patient record in due course, as a way to increase our harvest of organs where appropriate. Although I applaud the intentions of the hon. Member for Oxford, West and Abingdon—of course, all hon. Members share them—I fear that he has failed to take account of the broad spectrum of organisations involved in such procedures in tabling his series of new clauses and amendments.

My hon. Friend the Member for Spelthorne (Mr. Wilshire) put a particularly telling argument. We all bring certain things to the House and our experiences are very important in what we bring to the House, and his experience is this respect is extremely important. This is an extremely subjective matter. Fortunately, most of us have not had first-hand experience of it.

It is important to bear in mind the fact that significant distress is very much a subjective matter. Indeed, it is culturally and ethnically informed in respect of the giver of the distress, the owner of that distress and the interpreter of that distress. The concept of significant distress would be extremely difficult in the context in which the hon. Member for Oxford, West and Abingdon suggested that it should be used.

In short, I cannot recommend the new clause to my colleagues, although it is for them to make up their minds, but I will leave them with the thought that presumed consent is no consent at all.

Ms Rosie Winterton

This has been a very thoughtful and considered debate, and hon. Members on both sides of the House agree that we must increase the number of organ donations made in this country. The debate has been about how we achieve that. The new clause and amendments proposed by the hon. Member for Oxford, West and Abingdon (Dr. Harris) would introduce a system of presumed consent. However, I have to tell right hon. and hon. Members that that would undermine the Bill's fundamental principles. We strongly believe that if we want people to donate organs, whether for research or for transplantation, we should ask them for their permission. As my right hon. Friend the Secretary of State has said, the state does not own our bodies and neither do researchers nor clinicians.

7 pm

Organ donation is a gift from an individual that helps to save the life of another individual. It is also a gift to society. We believe very strongly that we should not assume that someone wants to make that gift. The fundamental principle that runs through the Bill is that consent, and informed consent, lies at the heart of the decisions that individuals take. My hon. Friend the Member for Dartford (Dr. Stoate) has direct experience of this issue and, as he said, people come at it from different directions and with different principles to govern their decisions. As I say, we are talking about people making a gift to society, and we must make sure that we enable that gift to be made without presuming that everybody wants to make it.

As my hon. Friend the Member for Wrexham (Ian Lucas) pointed out, the background to the Bill is the tragedies that occurred at Alder Hey and Bristol. I know that no Member of the House could fail to be moved by the distress that was caused to families at that time. They suffered not only bereavement, but then discovered that organs from their children had been removed without their knowledge. The Alder Hey, Bristol and Isaacs inquiries showed that that had become widespread practice and related not just to children, but to adults as well. Proper consent had not been given.

That is why the Bill came into being. We cannot take one part away from it—the part relating to transplants—and say that we will apply a different set of principles to that. That would not only undermine the Bill's principles, but would run counter to everything that we have been told by parents, families and the public. That would undermine the undertakings that we gave as a result of those reports—that we would make sure that such situations never happened again.

In preparing the Bill we consulted extensively, but we found no evidence that the public would give overwhelming support to a system of presumed consent. Believe me, to get a system of presumed consent, it is necessary to obtain overwhelming public support. We found that the great majority of people do not feel that the state should determine what happens to their bodies after death. What we allow to be done to our bodies is a personal matter for individuals and for the people closest to them.

Alder Hey, Bristol and the Isaacs inquiry revealed a breakdown of trust between the medical profession, researchers and the public. We said that the Bill would rebuild that trust and would provide a secure system whereby what happened when consent was not sought could not happen again.

David Taylor

Will my hon. Friend explain in a little more detail how new clauses 1, 2 and 3 undermine the assurances rightly given to parents of children whose organs were retained at Alder Hey and elsewhere? The new legislation rightly deals with that problem, but children are not covered by the proposals on organ transplantation. Is that not an entirely separate issue?

Ms Winterton

As hon. Members pointed out earlier—in particular, the hon. Member for Spelthorne (Mr. Wilshire)—even if someone is over 18, there will still be situations in which a parent may have to make a decision about their child. It would take only one case in which somebody did not realise that, under this system, they actually had to opt out of giving consent to their organs being removed, for there to be the kind of public outcry that would completely undermine the work that we have tried to do in recent years to rebuild trust so that people feel confident about coming forward and donating their organs for transplantation or research. We cannot take one part out of the equation. Bereaved parents or people from different religions might suffer great distress and find it unacceptable if they had not realised what they had to do. It would be extremely difficult to devise a system in which one could be assured that everybody knew that they had to opt out if they did not want their organs to be removed. That is why we cannot support the new clauses.

Many hon. Members have cited evidence based on experience in other countries that has appeared in different journals in support of presumed consent. However, I challenge some of the assertions that have been made. For example, the increase in the number of organ donations in Belgium followed, it is true, the introduction of its first-ever transplant law. That made organ donation legal in statute. However, there is no evidence that the law on presumed consent led to the increase. In the north of Belgium, where they have always operated a system of informed consent, the rates stayed the same.

In Austria, the passing of a presumed consent law failed to increase donation rates. The increase actually followed a change to the organ retrieval arrangements that were implemented three years later.

In Spain, the presumed consent law has never been used. The Spanish take pride in the fact that relatives are always asked, but they have a low refusal rate. Spain has the highest rate of organ donation in the world, and it is based not on presumed consent but on a model of organ donation devised by Dr. Rafael Matesanz, who said: Most of the Spanish people are in favour of organ donation but they want to be consulted.

The Expert Transplant Committee of the Council of Europe has made its advice clear in a document called "Meeting the Organ Shortage". It states that presumed consent laws, when fully accepted, seem to benefit donation but, in practice, are often not applied mainly because of reluctance within the medical and legal communities to enforce donation". In fact, out of 29 European countries surveyed, 19 have presumed consent, but only seven use it.

My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) asked whether we could produce some of the arguments in a little more detail. I confirm that the chief medical officer still holds the opinion that he held when we published "Human Bodies, Human Choices", and I am happy to give the undertaking that we will publish some of the detailed research and the response to it.

I assure the House that we have used the evidence from the United Kingdom and countries such as Spain to develop our transplant framework "Saving Lives, Valuing Donors" that I launched in July last year. That strategy's aim is to maximise all forms of organ donation by involving the public, the wider NHS and the transplant services. We want 16 million people to be on the organ donor register by 2010, and we also want to increase the number of living organ donors and develop the use of non-heartbeating donors. We have already employed 35 donor liaison nurses to work with staff in critical care units to help to identify potential donors and ensure that relatives are approached by people with appropriate training and given proper support at a critical time.

Although I thank the right hon. Member for Bracknell (Mr. Mackay) for his initial kind comments, he accused me of being rather callous when I talked about approaching relatives. All the evidence from other countries shows that the important factor is the system in place to ensure that people are able to make the right approach to relatives at the relevant moment. The hon. Member for Spelthorne was as eloquent as ever when he illustrated how a different approach could be more callous. If an approach was made with the implication of saying, "We have the right to take these organs from your loved one; do you have any objections?", it would be more callous than the current approach. Many people who suffer bereavement are comforted by knowing that they will be able to help to save other people's lives. The situation that I outlined was not meant to be callous. The approach works effectively in other countries and is one of the reasons why organ donation rates are higher there.

Mr. Dalyell

No one imagines that my hon. Friend or anyone else who shares her opinion is callous. However, a problem has been raised several times during the debate: is it sensible and rational to put such an awful question at a time of maximum grief when relatives are least able to give the kind of decision that they might give 24 or 48 hours later? It is the point of maximum grief that is unsatisfactory.

Ms Winterton

Under the new clause, relatives would still have to be asked whether they objected.

Dr. Evan Harris

May I clarify the situation, even though I thought that I had done so earlier? If no opt-out were recorded, relatives would be asked whether they knew of an unregistered opt-out. If they did not, it would be explained that the intention would be to use the organs for transplantation. Relatives would have the opportunity to raise their objections, but they would not be sought specifically. If they raised objections and said that the procedure would cause them to suffer significant distress, doctors would have the right not to take the organs, as is the case under the current system. Relatives would be asked only the question of whether there was an unregistered opt-out, but they would receive information and have the opportunity to offer their views.

Ms Winterton

The hon. Gentleman's comments give rise to two points. We know that relatives are always asked at the moment whether anything in the potential donor's recent history would mean that a disease such as AIDS might be passed on to a recipient. He also knows that if relatives object at that time and do not want to co-operate because they are upset by the situation, the donation will not go ahead, even if the potential donor would have consented.

7.15 pm

I tell my hon. Friend the Member for Linlithgow (Mr. Dalyell) that in both situations, an approach would be made to relatives during which they would be asked a question. However, an approach made with the implication that relatives will be told, "We're going to take the organs anyway", would be more callous than the alternative approach. People exercise their judgment in such situations, which is why I question the point made by the hon. Member for Westbury (Dr. Murrison) about required request. We should leave things up to professionals in difficult circumstances rather than providing that requests must be made in every situation, because that requirement would put an enormous burden on staff and I am not sure that they would co-operate in difficult circumstances.

Dr. Murrison

May I correct the Minister's inference? The system of required request, or required referral, ensures that professionals ask the question in general circumstances, but allows them to decide whether it is appropriate to broach the matter with relatives in specific circumstances.

Ms Winterton

I accept that point, but people clearly need proper training before making such requests—we would certainly want to ensure that they were not made inappropriately.

In addition to the measures that I outlined earlier, we have employed 23 living donor co-ordinators to work with families considering live donation. We have funded 12 programmes to increase the number of organs donated by non-heartbeating donors. Several hon. Members have noted those important programmes because they enable people other than those dying in intensive care units to donate their organs. We have appointed additional transplant co-ordinators to ensure that there is a minimum of one co-ordinator per million people in all regions. We have backed up those programmes with some £7 million investment in the NHS through UK Transplant.

Several hon. Members asked about the results of our initiatives. Between 1 April 2003 and 31 March 2004, the UK saw the highest number of organ transplants ever recorded—2,863 were carried out. There was a 20 per cent. increase in non-heartbeating donation, and 860,000 people added their names to the NHS organ donor register, bringing the total number to more than 11 million. I join my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) in thanking Rosemary and John Cox for everything that they have done to make that happen.

I assure hon. Members that we will continue to do everything that we can to get more people on to the NHS organ donor register. I recently held meetings with representatives from the National Union of Students because it is important for us to use every opportunity to get young people on the register. We have agreed a scheme to go around freshers' fairs in the autumn, and examined programmes through which people may tick a box to sign on to the register when they reapply for new driving licences. There are many schemes that we can consider and, as I am sure that every Member of the House of Commons will want to play their part in doing that, we are examining ways in which they may do so.

The statistics show that our strategy is beginning to work. We have seen a sustained increase in organ donation rates for the first time in seven years. As I said, Spain does not have a system of presumed consent, yet has one of the highest rates of organ donation. Following the kind of changes that we have made, it took Spain 10 years to reach its current level of organ donation. We hope to achieve such a level more quickly.

I reassure my hon. Friend the Member for Ealing, North (Mr. Pound) that we will look at issues such as health space—the electronic patient record, which the hon. Member for Westbury also mentioned. I assure my hon. Friend that there is nothing in our conclusion on presumed consent that is in any way connected to finance. That is not something we have considered at all. Our argument is about the principle of the Bill.

The Bill contains measures that will improve the current situation still further by clarifying two critical issues for transplantees. First, the uncertainties in the Human Tissue Act 1961 will be removed. The Bill makes it clear, not just to clinical teams but to families and those close to potential donors, who can consent and how. Secondly, the Bill makes it clear that preserving organ function after death is lawful. Again, there was uncertainty about that.

We have tabled some amendments on the issue of cold perfusion. I understand that the hon. Member for Oxford, West and Abingdon has withdrawn his amendments on that matter. After discussion in Committee, we reflected further on the issue. The amendments are intended to ensure that preservation does not fall foul of the consent requirements of the Bill, and therefore defeat the purpose for which clause 44 is drafted. The effect of Government amendment No. 66 is to ensure that, where a body is retained under the authority conferred by clause 44, the objective of the clause is not defeated by requirement for consent under clause 1.

The Government oppose new clause 5 tabled by the hon. Member for New Forest, West (Mr. Swayne) because we believe that the practice of elective ventilation remains ethically unacceptable and unlawful, and is in any case unnecessary nowadays. By putting a dying patient on a ventilator shortly before death, there is a risk of prolonging the dying process, and in a few cases of causing the patient to enter a persistent vegetative state. They could then remain in a coma for years. Obviously, such outcomes are not in the best interests of the patient, and in our view that is ethically unacceptable.

Mr. Pound

I was trying to find an appropriate pause when I could intervene. I apologise if this intervention is inconvenient or inappropriate. My hon. Friend has reassured me that finance is not an issue—that infrastructure costs are not the issue. Why, then, is this matter not subject to a free vote?

Ms Winterton

I had hoped that I had explained that the whole basis of the Bill is informed consent. As I have said. to remove one part of that—the bit referring to transplantation—would go against everything that we have said in response to the inquiries at Alder Hey and Bristol, and to the Isaacs report, and the undertakings that we have given to patients and families. That is why the Government feel that that is the principle of the Bill and that it should not be removed or undermined.

To return briefly to the issue of elective ventilation, there are also practical arguments that make any such procedure unnecessary. As we set out in "Saving Lives, Valuing Donors", the results of using organs from non-heartbeating donors are, for kidneys and probably livers, as good as those from heartbeating donors. So, I am afraid that the Government cannot accept the new clause.

Amendment No. 47 is in this group because it relates to transplantation. We became aware that the definition of transplantation in clause 55 does not include skin transplants, which a possible nowadays. So, a minor textual adjustment allows transplantation to include material applied to the body as well as material placed in the human body.

To sum up, the fundamental principle of the Human Tissue Bill is that it is for us as individuals to decide for what purposes our bodies and bodily material should be used. If we have not ourselves made our wishes clear, consent must be obtained from someone we have nominated or from those closest to us. Appropriate consent must be obtained to use human organs and tissues whether from the living or after death. I reiterate that that has governed our approach to the Bill from the very beginning. We have given very clear commitments to patients, families and staff in the NHS that that was the principle to which we would stick. We have based our approach on the issue of presumed consent on evidence from other countries. As I hope I have been able to illustrate, it is not having the legal basis of presumed consent that makes the difference. It is the system of organ donation in practice that makes the difference. We are investing more than £7 million in a system to maximise organ donation, and we are seeing the results of that.

Following what happened at Bristol and Alder Hey, trust was undermined between patients and the public and the medical profession and researchers about the system of removing organs without consent. We cannot accept an amendment that would set us back years in terms of the trust that we have been able to build up. We believe that our approach is the right one for patients; that it is the right one for relatives; and that it is the one that the public endorse. I therefore urge my right hon. and hon. Friends to reject the new?clause.

Dr. Evan Harris

This has been an excellent and good-natured debate. I do not think that anyone doubts the sincerity of the views held by Members on either side of the House on this issue, although I am sure there is much doubting of sincerity in other debates. We have benefited from being able to have an open debate on the subject.

I am a member of the BMA medical ethics committee and a co-chairman of the all-party kidney group, but my main interest in the issue comes from my years as a senior house officer in renal medicine and in acute medicine, where I saw organ donations from both sides. That is why I think something has to be done. I recognise that I come rather late to the debate, given that the hon. Member for Linlithgow (Mr. Dalyell), who spoke in this debate, introduced a private Member's Bill on the subject some years ago, as have the hon. Members for Nottingham, East (Mr. Heppell), who is now a Government Whip, for Broxtowe (Dr. Palmer), for West Bromwich, East (Mr. Watson), for Mitcham and Morden (Siobhain McDonagh) and the right hon. and learned Member for Rushcliffe (Mr. Clarke)—as well as my own Bill.

When the Bill introduced by the hon. Member for Broxtowe was pressed to a Division on First Reading, it was passed by 113 votes to 25, and 88 Labour Members voted in favour of presumed consent and only five against it. That perhaps explains why the Government have imposed a three-line Whip tonight. There will be a free vote for those on the Liberal Democrat Benches—and on the Conservative Benches—despite the fact that it is Liberal Democrat policy to support presumed consent. I know that some of my hon. Friends will not vote with me, and that is their right, because it is a matter of conscience.

Dr. John Reid

I have already explained to the hon. Gentleman why there is no free vote on this issue. It is nothing to do with those figures; it is to do with the simple fact that the conscience that has to be exercised as regards one's own body is one's own conscience, and it is not the role of this Parliament to remove from individuals the right to exercise their own choice. That is the sole reason why there is not a free vote. By allowing for a free vote, we would not be extending the power of people to exercise their conscience. We would be taking that power off them by assuming their consent.

Dr. Harris

On that basis, the right hon. Gentleman would not allow a free vote even on a private Member's Bill because he does not think that Parliament has any legislative role in this respect. Yet Parliament is indeed legislating today to remove autonomy from individuals and transfer it to their grieving relatives. That is what current legislation and the Bill do. Parliament is therefore entitled to express a view on the issue. It is sad that the Secretary of State will not trust Members of Parliament to represent the views of the country and will not allow a free vote. It may well be that we would not win the vote, but it should at least be free.

7.30 pm

The hon. Member for Westbury (Dr. Murrison) opposes presumed consent. He quoted anecdotes drawn from the experience of Sweden. Those anecdotes may well be correct; the problem is that there is anecdote to support both sides of the argument. That is why I urge hon. Members, when considering whether presumed consent with opt-out would work, to look to the published review literature in peer-reviewed scientific journals that attempts to adjust for local factors, such as the fact that countries have different rates of road traffic accidents. During the debate, no one has disputed the two reviews that I quoted that show that, on balance, this legislative proposal does have an impact.

The hon. Gentleman said that the transplant community is split. I hardly think that that is the case, given that the British Transplantation Society voted 80 per cent. to 20 per cent. in favour of a change in the law to presumed consent with opt-out, having previously taking a different view. That society represents doctors, nurses, technicians and transplant co-ordinators involved in the field. He argued that UK Transplant opposes presumed consent, but that is a Government body. I doubt that he has asked the individuals who work within UK Transplant for their individual views, as I have. If he did, I suspect that he would hear a different opinion.

Dr. Murrison

The hon. Gentleman disparages UK Transplant. He should know that it represents the views of a raft of bodies and individuals engaged in transplantation. He should be guided by such an august body.

Dr. Harris

UK Transplant's job is to implement Government policy, and I think that it does so rather well. The Government are making a big effort using the existing system. The fact that it does not work is not the fault of the Government or of UK Transplant.

The hon. Gentleman argued for required consent—that is, forcing doctors to raise the issue with relatives, based on the presumption that not doing so is why we are not getting the organ donations we need. However. the Government's own study, the potential donor audit carried out by UK Transplant, shows that in 255 of the 278 cases of people in intensive care units between April and June 2003 who were suitable for potential donation the subject was considered, and in only 23 cases was it not. A record of conversations with the relatives appears in the case notes of 244 of those 255 cases; only in 11 cases is there no such record, although that is likely to be because relatives' views were already known. Even if it were appropriate—the Minister said it is not—the hon. Gentleman's would be a fruitless approach.

The Minister said that we should not presume that all wish to donate. That is not the effect of the new clause. The new clause provides for an opt-out of which those who do not wish to donate can avail themselves. The hon. Lady should not misrepresent the proposal.

The Minister's main argument was that the new clause represented a different approach from that taken in the rest of the Bill—that the common thread of the rest of the Bill is what she describes as informed consent. I hope that I accurately reflect her argument. However, I question whether the rest of the Bill is about informed consent in relation to transplantation so much as it is about relatives' consent, which is not the informed consent of the individual, but often a guess at what that individual would have wanted. In any case, the Bill does not always refer to informed consent: the Government have had to table an amendment to clause 44, which deals with cold perfusion, to make it clear that it does not follow the main thrust of the Bill, in that people are presumed to consent to cannulation of their renal artery for preservation of renal function while further inquiries are made. Presumed consent therefore already appears in the Bill. It is right to have it for the purpose of transplantation, and the Minister would be right to extend the principle.

The hon. Lady says that there is no evidence of overwhelming public support for presumed consent. That may be so, but neither is there evidence of lack of public support for it. As the right hon. Member for Holborn and St. Pancras (Mr. Dobson) suggested, there should be a consultation specifically on the issue. He suggested a Green Paper; I ask that the Government conduct some form of exercise to establish the level of public support. If there were no public support for the new clause, I would withdraw it. Opinion polls have shown that there is public support; the Minister has not shown that there is none. That is why I think we can go ahead.

We can debate what the Belgian and the Spanish experience show. The Minister is not convinced by the evidence, but I am glad that, today, she retreated from her original position, which was that there was no evidence to support the assertion that presumed consent may well work. We can and should have that debate. I hope that, at the very least, we shall have the chance to have it.

Rob Marris

The hon. Gentleman talks about having further debate. I invite him to withdraw the motion in view of the fact that this debate has lasted three hours and four minutes and, judging by the notes in his hand, is likely to take, at most, about five minutes more. Does he really think that such a major change in UK law is best achieved after less than three hours, 10 minutes of debate? I do not think that it is.

Dr. Harris

I draw the hon. Gentleman's attention—[Interruption.]

Madam Deputy Speaker (Sylvia Heal)

Order. We are nearing the end of an important debate and the volume of conversation is too high.

Dr. Harris

I draw the hon. Gentleman's attention to the fact that there have been private Members' Bills on this subject. Another may well be needed. Furthermore, there is another House, which has not yet considered the matter—another House that contains a considerable amount of expertise. If the new clause is accepted, there will be further opportunities both in that House and when the Bill is sent back to this place to consider the matter further. The hon. Gentleman should therefore be reassured.

The Secretary of State made two interventions. We thank him for having come to the Chamber to participate in the debate—I think it was the hon. Member for Linlithgow who suggested that he did so. The right hon. Gentleman said that the decline under the present system might be due to what happened at Alder Hey. That is a common fear, but the figures that I handed to him in graphic form, to make it absolutely clear, suggest that the decline has been a steady one over 10 years. The present system is not working. The Minister of State might have been able to announce today that the figures for the last 12 months—not a calendar year—which were not on the UK Transplant website last week, show an improvement. I hope that that improvement can be sustained, but we have had false dawns before. The current system is not working. That is why the Coxes, who invented the organ donor register, and Elizabeth Ward, who invented the kidney donor card, all support the new clauses. They know that what it proposes would be more effective.

The Secretary of State's main point was that my proposal represented a nationalisation of organs. It does not. It would return to ourselves autonomy in determining what happens to our organs. Yes, the vast majority of people want to donate, but under my scheme, they would have the opportunity to opt out if they did not. Instead of allowing 50 per cent. of grieving relatives at the height of their grief to make a decision that many later regret and that goes against the wishes of the person whose organs they are, presumed consent with opt-out maximises the autonomy and the right of decision of the persons whose organs they are.

We need a fair test of the House. With a three-line Whip in operation on the Government Benches, I do not think that we will have a fair test. I hope that we will have an opportunity to test the views of the nation through some form of deliberation or consultation. The best we can do today is to divide the House and show that many hon. Members on both sides feel that we owe it to people on the transplant waiting list to do more for them, we owe it to relatives to reduce the stress that they face when asked to make donation decisions, and we owe it to people whose organs they are to restore their autonomy.

Question put, That the clause be read a Second time:—

The House divided: Ayers 60. Noes 307.

Division No. 208] [7.39 pm
Bottomley, Peter (Worthing W) Marshall-Andrews, Robert
Breed, Colin Mates, Michael
Brooke, Mrs Annette L. Moonie, Dr. Lewis
Burstow, Paul Page, Richard
Burt, Alistair Pike, Peter (Burnley)
Chidgey, David Pound Stephen
Clarke, rh Kenneth (Rushcliffe) Rendel, David
Cook, rh Robin (Livingston) Robertson, Hugh (Faversham &
Corbyn, Jeremy M-Kent)
Cotter, Brian Russell, Bob (Colchester)
Dalyell, Tam Sanders, Adrian
Duncan Smith, rh lain Sedgemore, Brian
Dunwoody, Mrs Gwyneth Shephard, rh Mrs Gillian
Fabricant, Michael Short, rh Clare
Forth, rh Eric Simpson, Keith (M-Norfolk)
Gale, Roger (N Thanet) Skinner,Dennis
Gidley, Sandra Squire, Rachel
Gillan, Mrs Cheryl Stunell Andrew
Hancock, MiKe Swayne, Desmond
Harris, Dr. Evan (Oxford W & Taylor, David (NW Leics)
Taylor, Matthew (Truro)
Abingdon) Taylor, Dr. Richard (Wyre F)
Hogg, rh Douglas Teather, Sarah
Holmes, Paul Thomas Simon (Ceredigion)
Hopkins, Kelvin Tyler, Paul (N Cornwall)
Hughes, Simon (Southwark N) Wiggin Bill
Jones, Lynne (Selly Oak) Williams, rh Alan (Swansea W)
Kirkwood, Sir Archy Willams, Hywel (Caernarfon)
Lamb, Norman Williams, Roger (Brecon)
Luff, Peter (M-Worcs) Wright, Tony (Cannock)
McDonnell, John
McWalter, Tony Tellers for the Ayes:
Marsden, Paul (Shrewsbury & Mr. Andrew Mackay and
Atcham) John Barrett
Ainger, Nick Buck, Ms Karen
Ainsworth, Bob (Cov'try NE) Burnham, Andy
Alexander, Douglas Burns,Simon
Allan, Richard Byers, rh Stephen
Allen, Graham Caborn di Richard
Anderson, rh Donald (Swansea E) Cairns, David
Anderson, Janet (Rossendale & Cameron, David
Darwen) Campbell, rh Sir Menzies (NE
Armstrong, rh Ms Hilary Fife)
Atherton, Ms Candy Campbell, Ronnie (Blyth V)
Baird, Vera Caplin, Ivor
Barnes, Harry Casale, Roger
Battle, John Caton, Martin
Beith, rh A. J. Cawsey, Ian (Brigg)
Bennett, Andrew Challen Colin
Benton, Joe (Bootle) Chapman Ben (Wirral S)
Best, Harold Chapman Sir Sydney (Chipping
Blears, Ms Hazel Barnet)
Blizzard, Bob Chope, Christopher
Boateng, rh Paul Clark, Paul (Gillingham)
Bradley, rh Keith (Withington) Clarke, rh Tom (Coatbridge &
Bradley, Peter (The Wrekin) Chryston)
Bradshaw, Ben Clarke, Tony (Northampton S)
Brady, Graham Clifton-Brown, Geoffrey
Brennan, Kevin Clwyd, Ann (Cynon V)
Brown, rh Gordon (Dunfermline Coffey, Ms Ann
E) Cook Frank (Stockton N)
Brown, Russell (Dumfries) Cooper, Yvette
Browne, Desmond Cormack, Sir Patrick
Bryant, Chris Corston, Jean
Cousins, Jim Humble, Mrs Joan
Cran, James (Beverley) Hutton, rh John
Crausby, David Iddon, Dr. Brian
Cryer, Ann (Keighley) Illsley, Eric
Cummings, John Ingram, rh Adam
Cunningham, rh Dr. Jack Irranca-Davies, Huw
(Copeland) Jackson, Glenda (Hampstead &
Cunningham, Jim (Coventry S) Highgate)
Cunningham, Tony (Workington) Jackson, Helen (Hillsborough)
Darling, rh Alistair Jamieson, David
David, Wayne Jenkins, Brian
Davidson, Ian Johnson, Miss Melanie (Welwyn
Davies, rh Denzil (Llanelli) Hatfield)
Davies, Geraint (Croydon C) Jones, Helen (Warrington N)
Davis, rh David (Haltemprice & Jones, Jon Owen (Cardiff C)
Howden) Jones, Kevan (N Durham)
Dean, Mrs Janet Jones, Martyn (Clwyd S)
Dhanda, Parmjit Jowell, rh Tessa
Djanogly, Jonathan Joyce, Eric (Falkirk W)
Dobbin, Jim (Heywood) Kaufman, rh Sir Gerald
Dobson, rh Frank Keen, Alan (Feltham)
Donohoe, Brian H. Keen, Ann (Brentford)
Dowd, Jim (Lewisham W) Kennedy, Jane (Wavertree)
Duncan, Peter (Galloway) Key, Robert (Salisbury)
Eagle, Angela (Wallasey) Khabra, Piara S.
Eagle, Maria (L'pool Garston) Kidney, David
Edwards, Huw Kilfoyle, Peter
Efford, Clive King, Ms Oona (Bethnal Green &
Etherington, Bill Bow)
Farrelly, Paul Knight, rh Greg (E Yorkshire)
Field, rh Frank (Birkenhead) Knight, Jim (S Dorset)
Fisher, Mark Ladyman, Dr. Stephen
Fitzsimons, Mrs Lorna Lammy, David
Flint, Caroline Lansley, Andrew
Foster, rh Derek Lawrence, Mrs Jackie
Foster, Michael Jabez (Hastings Laws, David (Yeovil)
& Rye) Lazarowicz, Mark
Francis, Dr. Hywel Leigh, Edward
Francois, Mark Lepper, David
Gerrard, Neil Letwin, rh Oliver
Gibson, Dr. Ian Levitt, Tom (High Peak)
Gilroy, Linda Lewis, Ivan (Bury S)
Green, Damian (Ashford) Lewis, Dr. Julian (New Forest E)
Grieve, Dominic Liddell-Grainger, Ian
Griffiths, Win (Bridgend) Linton, Martin
Hain, rh Peter Lloyd, Tony (Manchester C)
Hall, Mike (Weaver Vale) Llwyd, Elfyn
Hamilton, David (Midlothian) Love, Andrew
Hanson, David Lucas, Ian (Wrexham)
Harman, rh Ms Harriet McAvoy, Thomas
Harris, Tom (Glasgow Cathcart) MacDonald, Calum
Havard, Dai (Merthyr Tydfil & MacDougall, John
Rhymney) McGuire, Mrs Anne
Hayes, John (S Holland) Mclsaac, Shona
Healey, John McKenna, Rosemary
Heath, David Mackinlay, Andrew
Henderson, Doug (Newcastle N) McLoughlin, Patrick
Hendrick, Mark McNulty, Tony
Hepburn, Stephen MacShane, Denis
Heppell, John Mactaggart, Fiona
Hesford, Stephen McWilliam, John
Hewitt, rh Ms Patricia Mahmood, Khalid
Heyes, David Mahon, Mrs Alice
Hill, Keith (Streatham) Maples, John
Hinchliffe, David Marris, Rob (Wolverh'ton SW)
Hodge, Margaret Marsden, Gordon (Blackpool S)
Hood, Jimmy (Clydesdale) Marshall, David (Glasgow
Hope, Phil (Corby) Shettleston)
Howarth, rh Alan (Newport E) Mawhinney, rh Sir Brian
Howarth, George (Knowsley N & Meale, Alan (Mansfield)
Sefton E) Merron, Gillian
Howarth, Gerald (Aldershot) Milburn, rh Alan
Howells, Dr. Kim Miliband, David
Hughes, Beverley (Stretford & Miller, Andrew
Urmston) Mitchell, Austin (Gt Grimsby)
Hughes, Kevin (Doncaster N) Moffatt, Laura
Mole, Chris Smyth, Rev. Martin (Belfast S)
Moore, Michael Soley, Clive
Moran, Margaret Southworth, Helen
Morgan, Julie Spicer, Sir Michael
Moss, Malcolm Spink, Bob (Castle Point)
Mountford, Kali Starkey, Dr. Phyllis
Mudie, George Steinberg, Gerry
Munn, Ms Meg Stevenson, George
Murphy, Denis (Wansbeck) Stewart, David (Inverness E &
Murphy, Jim (Eastwood) Lochaber)
Murrison, Dr. Andrew Stewart, Ian (Eccles)
Naysmith, Dr. Doug Stinchcombe, Paul
Oaten, Mark (Winchester) Stoate, Dr. Howard
O'Brien, Bill (Normanton) Stringer, Graham
O'Brien, Mike (N Warks) Stuart, Ms Gisela
O'Brien, Stephen (Eddisbury) Swire, Hugo (E Devon)
O'Hara, Edward Syms, Robert
Olner, Bill Tami, Mark (Alyn)
Opik, Lembit Taylor, Dari (Stockton S)
Organ, Diana Taylor, Sir Teddy
Osborne, Sandra (Ayr) Thomas, Gareth (Clwyd W)
Paice, James Timms, Stephen
Picking, Anne Touhig, Don (Islwyn)
Pickthall, Colin Truswell, Paul
Plaskitt, James Turner, Andrew (Isle of Wight)
Pollard, Kerry Turner, Dennis (Wolverh'ton SE)
Pond, Chris (Gravesham) Turner, Dr. Desmond (Brighton
Pope, Greg (Hyndburn) Kemptown)
Prentice, Gordon (Pendle) Turner, Neil (Wigan)
Prescott, rh John Twigg, Derek (Halton)
Primarolo, rh Dawn Twigg, Stephen (Enfield)
Prosser, Gwyn Tynan, Bill (Hamilton S)
Purchase, Ken Tyrie, Andrew
Purnell, James Vaz, Keith (Leicester E)
Vis, Dr. Rudi
Quin, rh Joyce Walley, Ms Joan
Randall, John Ward, Claire
Rapson, Syd (Portsmouth N) Watts, David
Redwood, rh John Webb, Steve (Northavon)
Reid, rh Dr. John (Hamilton N & White, Brian
Bellshill) Whitehead, Dr. Alan
Robathan, Andrew Wicks, Malcolm
Robertson, John (Glasgow Widdecombe, rh Miss Ann
Anniesland) Williams, Betty (Conwy)
Robertson, Laurence (Tewk'b'ry) Wilshire, David
Robinson, Geoffrey (Coventry Winterton, Ann (Congleton)
NW) Winterton, Sir Nicholas
Roche, Mrs Barbara (Macclesfield)
Rooney, Terry Winterton, Ms Rosie (Doncaster
Roy, Frank (Motherwell) C)
Ruane, Chris Wood, Mike (Batley)
Ruffley, David Woolas, Phil
Russell, Ms Christine (City of Worthington, Tony
Chester) Wright, Anthony D. (Gt
Ryan, Joan (Enfield N) Yarmouth)
Sarwar, Mohammad Wright, David (Telford)
Savidge, Malcolm Wyatt, Derek
Shaw, Jonathan Young, rh Sir George
Sheridan, Jim
Singh, Marsha Tellers for the Noes:
Smith, rh Andrew (Oxford E) Vernon Coaker and
Smith, Llew (Blaenau Gwent) Charlotte Atkins

Question accordingly negatived.

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