PROHIBITION OF ACTIVITIES WITHOUT CONSENT ETC. (Hansard, 28 June 2004)

§ Ms Rosie Winterton
I beg to move amendment No. 29, in page 5, line 22, at end insert— '(1A) A person commits an offence if—

(a)he falsely represents to a person whom he knows or believes is going to, or may, do an activity to which subsection (1), (2) or (3) of section 1 applies—

(i)that there is appropriate consent to the doing of the activity, or

(ii)that the activity is not one to which the subsection applies, and
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he knows that the representation is false or does not believe it to be true.'.

§ Mr. Deputy Speaker (Sir Michael Lord)
With this, it will be convenient to discuss Government amendment No. 30.

§ Ms Winterton
On Second Reading and in Committee, several hon. Members argued that the Bill as drafted fails to deal with a position whereby a person knowingly and deliberately deceives a colleague into believing that consent has been given for the use of tissue or organs for research. That is because the criminal offences in the Bill are directed only at the person who stores and uses the material without consent. I gave an undertaking that we would reconsider that issue, which has been of concern to pathologists. They consider it unreasonable that they will be in the frame for the criminal penalties that relate to consent when they may be acting in good faith, whereas a clinician who knowingly misleads them by saying that consent has been granted when it has not, will not commit an offence under the Bill.
Similarly, a coroner—or a coroner's officer or technician—who claims that consent was not necessary because there was authority from a coroner to perform the activity in question would also be outside the scope of the offences. In a case in which a clinician, technician or coroner deliberately and falsely said that appropriate consent or a coroner's authority was in place, and another person stored or used the tissue believing this to be true, this latter person might be able to use the reasonable belief defence against any charge. But in that case, nobody would be liable under the Bill, which we recognise would defeat the purpose of regulation.
After consideration, we propose that an amendment be made to extend the criminal offence, which currently applies to people who carry out an activity without appropriate consent, so that it also applies to people falsely claiming that the necessary consent has been given or is not needed. Amendment No. 29 sets out the new offence. Amendment No. 30 is consequential on this, removing use of existing holdings of human tissue from the scope of the offence, in keeping with our general approach to existing holdings of issue.
We hope that these offences will merely be a backstop to be put in place to demonstrate the seriousness with which we view the issue of consent. We believe that general standards of good practice will be more than sufficient to ensure that there should be no need to invoke the offences.

§ Dr. Murrison
I am grateful to the Minister, and her last comment that she hopes that the offences will be hypothetical was important, because I seriously believe that no charges under this provision will ever be brought. Indeed, members of the research community feel slightly threatened by the possibility of being criminalised in this way, and they need reassurance. It is also important, hypothetically, that those who seek redress should have access to the individual who is to blame. It would be wrong to make a law under which a complainant did not have someone to put the finger on, but this provision makes that possible. The Bill 108 previously failed to do so, because there would have been a defence if a researcher had not been correctly informed as to whether consent had been obtained, and nobody would have been able to be "nailed" for the offence, so to speak. The amendment will remedy that. With that in mind, I support the amendment and its consequential amendment.