PREPARATION OF CODES (Hansard, 28 June 2004)

§ Ms Rosie Winterton
I beg to move amendment No. 75, in page 14, line 13, after 'prepare', insert 'and issue'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendment No. 25.
Government amendment No. 26 and the following amendment thereto: (a), in line 2, after '(2)', insert '(e), (g),'.
Government amendments Nos. 76 and 77, 27, 78 to 84 and 28.

§ Ms Winterton
First, I will deal with Government amendments Nos. 75 to 84 regarding approval of the codes of practice.
Most of the codes of practice required under the Bill are currently subject to the Secretary of State's approval and must be laid before Parliament, but there is no procedure for their scrutiny. In Committee, Members raised the issue of making those important codes subject to a process of parliamentary scrutiny, to allow an opportunity for their contents to be considered.
We have taken note of those representations and, on further reflection, we consider that where the codes may have a significant role in the regulation of licensed activities, parliamentary scrutiny would be appropriate. We now propose amendments to provide that the codes approved by the Secretary of State should be laid before Parliament and subject to approval by the negative resolution procedure before they may be issued by the Human Tissue Authority. To achieve that, amendments are proposed to clause 23, and provision for the negative resolution procedure is introduced in clause 26.
Government amendments Nos. 25 to 27 deal with the need for a code of practice on obtaining consent from living patients. We know from debate on Second Reading and in Committee that pathologists and researchers are anxious about what constitutes consent under the Bill, as a criminal penalty attaches to carrying on many activities without consent. Provision for the Human Tissue Authority to lay down the standards expected in relation to obtaining consent to store or use tissue from deceased persons is explicit in clause 24. The reason for that is that it is necessary to set out in the Bill that those standards must include advice on the hierarchy of qualifying relationships when consent is to be given after a person's death.
Hon. Members may recall that amendments were tabled in Committee and that considerable debate took place about the need to make explicit the fact that the Human Tissue Authority would also provide a code of 112 practice giving guidance on obtaining consent from living patients. As presently drafted, the authority would be able to issue such a code on consent and we would expect it to do so, but we recognise the value of providing reassurance to those who are concerned about consent. We therefore propose that the Bill should make it explicit that the authority will issue a code of practice on obtaining consent from living patients.
The amendments will achieve that, placing a new duty on the Human Tissue Authority to deal with consent in its codes of practice in clause 23, and clause 24 then sets out the particular matters that such a code must deal with in respect of the hierarchy of qualifying relations that are relevant to obtaining consent from those close to a deceased person.
The Government are not persuaded of the need for amendment (a) to Government amendment No. 26, which was proposed by the hon. Member for Oxford, West and Abingdon (Dr. Harris). We believe that it is unnecessary because the authority can—[Interruption.] Is the hon. Gentleman not intending to press the amendment?

§ Dr. Evan Harris
I was saying to the Minister that it was a probing amendment in the hope that she would explain, as she is now, why she removed the reference to clause 23(2)(e) and (g).

§ Ms Winterton
The authority can issue codes of practice on whatever it thinks fit within its remit, and clause 23 requires it to deal with certain important matters. As we intend to amend that clause, it will spell out that the codes must deal with consent in respect of the removal, storage and use of human tissue from the living and those who have died, and the storage and use of whole bodies. That includes the need to obtain consent from families in order to carry out post-mortems and remove material from the body. To the extent that the matters listed in clause 23(2)(e) and (g) deal with the need to obtain consent from families, they are already covered by the Government amendment and there is no need to repeat the provision.

§ Dr. Murrison
Broadly speaking, we welcome that. The need for a code of conduct on consent is acknowledged and that has to be right. We debated the matter at some length in Committee, and I am pleased that the Government have brought forward these amendments. The hierarchy of consent deals with the position of grandparents, which I also recall was debated at length in Committee. I am also pleased that Ministers have recognised the importance of grandparents.
Government amendment No. 25 changes "relevant material" effectively to the body of a deceased person, or relevant material which has come from a human body". Will the Minister speak to that and explain in more detail the need for the amendment, because I did not quite catch it in her remarks?
Government amendment No. 26 and the Liberal Democrat amendment (a) thereto are a recognition of concerns expressed in Committee that consent was not a matter to which the Human Tissue Authority had to have regard. The Liberal Democrat amendment rightly 113 points out that families really do matter in the context of consent. Indeed, we debated that earlier today in respect of different groups of amendments. The point would fall quite neatly in line with Government amendment No. 27, if the Government were minded to accept it, but I understand that amendment (a) is merely a probing amendment designed to underscore the importance of families and to ask why two paragraphs were not specifically mentioned in the Government amendment.
Government amendment No. 78 does not make sense to me, so the Minister might like to reflect a little more on the wording and tell us what the provision means. Perhaps the amendment could be changed again to reflect more closely her meaning. If the amendment to clause 26 were accepted, subsection (1) would read: The Authority may not issue a code of practice under section 23 deals with a matter mentioned in any of paragraphs (a) to (c) and so forth. That is a bit of a non-sequitur. Unless I am missing something, the wording does not make sense, so I would be grateful if the Minister would explain it.

§ Dr. Evan Harris
I rise briefly to thank the Minister for explaining why our amendment (a) is not necessary. I also want to beat her assistant to it in pointing out to the hon. Member for Westbury (Dr. Murrison) that amendment No. 79 inserts a "that" to correct the grammar in the clause that he read out. However, I shall leave it to the Minister to say whether she feels that the meaning has been changed rightly or wrongly by the amendments. We also welcome this group of amendments.

§ Ms Rosie Winterton
There seems to be some nodding from officials about the possible ungrammatical nature of the amendments, but I shall consider the issue further. Inadvertently, I forgot to cover Government amendment No. 28, which relates to a technical point about the use of the word "child" in the Bill. It was mentioned earlier in the debate and it has been drawn to our attention.
The word "child" is variously used to mean a person under 18 years or someone's potentially adult offspring, depending on the context in which it is used. The current definition of "child" in clause 55 is a person under the age of 18, except in the list of "qualifying relationships" at subsection (10) of the clause. It is in the context of "qualifying relationships" that a person could be the adult child of a deceased person, and so able to consent to post-mortem donation. However, the term "child" is also used in the context of qualifying relationships at other points in the Bill, for example at clause 24, so the amendment clarifies that any reference to a child in that context is a reference to a person who is the offspring of another person, whatever their age. Elsewhere in the Bill—for example in the context of consent from a living person to use of their own tissue—a child is a person under 18 years of age. The amendment is simply to clarify the position in either case.
The hon. Member for Westbury (Dr. Murrison) raised a particular point about the deceased person in amendment No. 25. The amendment extends the requirement for consent from material to the body of the deceased person, to make the provision comprehensive and so that the code will cover all situations in which consent may be required.