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Mr. Lansley: I half suspected that that was true in relation to amendment No. 139, but it does not change the point in relation to amendment No. 138. As I understand it, the Human Organ Transplants Act 1989 includes a penalty not for conviction on indictment but only on summary conviction, and that was for three months. As the Under-Secretary said, it is a matter of judgment. My judgment is that 12 months is excessive and that, in particular, no justification has been
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presented to move from what was a penalty in relation to commercial dealings in human organs. That seems to me to be a serious offence, and there is no evidence that that penalty has been seen to be insufficient in relation to that offence in the past to warrant this shift to a more severe penalty now.
Dr. Ladyman: To return to the phrase that I used during discussion of earlier amendments, the golden thread that runs through the Bill is that people must have consented to the use of their own bodies. It is sacrosanct that we control our own bodies. We are discussing an offence where someone wilfully ignores the wishes of an individual, either by not seeking to ascertain what those wishes are or by ignoring them when they know about them. That is a serious matter and the serious penalties that we are suggesting in the Bill might, in certain circumstances, be entirely appropriate and should be at the disposal of the courts.
Mr. Lansley: We can differ on this, but I cannot change how I propose to proceed. I shall not press the amendment now but that is not because I agree with the Under-Secretary.
I was trying to ascertain whether there was a clear process by which the Government had arrived at their judgment. It seems to me that it is based on the views that have been expressed to the Department. I am not aware that those views were canvassed specifically in the consultation. I am not persuaded, but we will go away and ask for views between now and Report from those who may be affected and families who, quite rightly, want to see enforcement and penalties that seem to them to be commensurate with the seriousness of the offence. In the light of those views, we shall take a view on the appropriateness of seeking to raise the matter again on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 ordered to stand part of the Bill.
Clause 6
Restriction of activities in relation to
donated material
Dr. Harris: I beg to move amendment No. 144, in
clause 6, page 6, line 35, leave out 'decent' and insert 'safe and lawful'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 147, in
schedule 3, page 44, line 28, leave out 'decent' and insert 'safe and lawful'.
Amendment No. 145, in
clause 28, page 18, line 18, leave out 'decent' and insert 'safe and lawful'.
Amendment No. 146, in
clause 56, page 33, line 41, leave out 'decent' and insert 'safe and lawful'.
Dr. Harris: I would be grateful if the Under-Secretary could explain how ''decent disposal'' is defined and why that is a better term, defined or otherwise, than ''safe and lawful disposal'', which is
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proposed in the amendment to this clause and the other clauses in which it appears.
Dr. Richard Taylor: To give the Under-Secretary a moment more, may I remind him of the words in the code of practice for families and post mortems? I, too, am worried about the word ''decent''. Does that cover the words in the code of practice:
''Tissue and organs should be handled respectfully at all times . . . The method of disposal must be legal''?
With the hon. Member for Oxford, West and Abingdon, I am a little concerned that the word ''decent'' is not quite strong enough or adequate enough to cover the method of disposal.
Dr. Ladyman: The amendments would change both the wording and the sense of the clauses, which, as the hon. Member for Oxford, West and Abingdon said, refer to the disposal of bodies and body parts. He suggested the alternative wording ''safe and lawful'', but that does not convey the important idea that the disposal of human bodies or material should be accorded respect appropriate to them, which is what we are trying to achieve.
''Decent disposal'' in relation to whole bodies is a familiar term from the Anatomy Act 1984. It is not the Government's wish to provide exemptions from the offences in clauses 6 and 28 covering the disposal of bodies in any way other than a decent one.
I hope that it would be helpful if I paraphrase the relevant part of the regulations under the 1984 Act. The Anatomy Regulations 1988 state that disposal of a body after anatomical examination shall, so far as is practicable, be in accordance with any wishes expressed by the deceased or any surviving spouse or surviving relative, and separated parts of the body shall, so far as is practicable, be disposed of with the body from which they were removed.
We recognise that disposal of parts of bodies, particularly small parts, is different from the disposal of whole bodies. For that reason, clause 56(5) provides that decent disposal, in relation to material that has come from a body, includes disposal as waste. It is not necessarily the size of the material that should determine the manner of its disposal. There may be enormous differences in how even relatively small amounts of tissue should be disposed of, the obvious example being foetal tissue. For that reason, the Government believe that it is appropriate to put in legislation the concept of decent disposal, but also to deal with the vast range and complexity of the situation to which it applies through the guidance.
Clause 23(2)(1) provides that the Human Tissue Authority's code of practice must deal with the disposal of relevant material, and that that will provide adequate insurance that disposal will be safe and lawful. I hope that that is the assurance that the hon. Members for Oxford, West and Abingdon and for Wyre Forest are seeking, and that the hon. Member for Oxford, West will withdraw his amendment.
Dr. Harris: It does, indeed, appear to be the assurance that we sought. I beg to ask leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Clause 7
Existing holdings
Dr. Ladyman: I beg to move amendment No. 33, in
The amendment corrects a drafting error in clause 7, proving that, very occasionally, even the Government make mistakes. The effect of clause 7, as drafted, is that it would be an offence under clause 5(1) to use existing holdings without appropriate consent. Clause 7(1) provides that clause 1(1) applies to existing holdings without the requirement for appropriate consent. That means that it is lawful to use existing holdings for scheduled purposes without needing to go back and obtain consent.
Clause 5, however, makes it an offence to undertake the activities to which clause 1(1) applies without obtaining appropriate consent. Such activities include storing and using relevant material for scheduled purposes. Clearly, the intention of clause 7 would be defeated if clause 5 made it an offence to continue to store and use existing holdings without appropriate consent. So, the amendment corrects that by providing that clause 5(1) is to be read as though the storage and use of existing holdings were not activities to which clause 1(1) applies. I hope that that is clear to all hon. Members and that they will accept the Government's amendment.
Amendment agreed to.
Dr. Taylor: I beg to move amendment No. 55, in
I have to declare a personal interest. My local newspaper has written reports saying that many Members have imaginary skeletons in their cupboards. I have a real one, as many doctors of my vintage do. I am concerned that, as the Bill is written, I am not lawfully allowed to have that. I cannot, as the hon. Member for Westbury did some years ago, dispose of mine because that is not covered either. So, the purpose of the words that I seek to add to the Bill is to try to make it legal to have possession of something that was used at one time. However, if the Under-Secretary can reassure me and many other doctors of my sort of age that I am not liable to 51 weeks in prison, or whatever the punishment is, I shall certainly seek leave to withdraw the amendment.
Dr. Murrison: I, too, was once the owner of a skeleton—I confess that I am no longer in possession of it. It is a serious point, because there is a considerable number of medical students, and potentially this loophole could criminalise them, which would be terrible. Things have moved on somewhat since the hon. Member for Wyre Forest qualified—in this day and age, a medical student usually has a half-skeleton. Traditionally, those skeletons are sold on to oncoming medical students by those who have qualified. That seems to me to be
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perfectly legitimate, and I doubt that there is any profit involved. It means that those skeletons are recycled, and I am sure that most of us would say that that is a good thing. The Under-Secretary may wish to reflect on that rather peculiar situation, and perhaps on whether the amendment put forward by the hon. Member for Wyre Forest is a good one to include in the Bill to close this loophole.
Dr. Ladyman: Seldom have I heard Members admitting to such debauched acts. I was going to give the hon. Gentlemen the assurances that they seek, but the thought of banging them away for three years each is intriguing me. Having said that, I can give them and other holders of skeletons the assurance that they want.
The consent provisions of clause 1 do not apply to use of material held for scheduled purposes at the time the Bill comes into force, or to imported bodies and material, or to bodies and material which have come from a person who died more than 100 years before Bill comes into force. It will be lawful to continue to keep and use human material already retained in archives when the Bill takes effect, where these are held for scheduled purposes. The Human Tissue Authority will have the role of advising on how currently stored tissue and organs should be dealt with. The Authority will issue a statutory code of practice setting standards and giving guidance about existing holdings. This will follow on from the existing guidance issued by the Department in April 2003, ''An Interim Statement on the Use of Human Organs and Tissue''.
The intention behind clause 7 is to ensure that it is lawful to continue to store and use existing holdings for scheduled purposes without needing appropriate consent, once the Bill comes into force, subject to guidance. This applies, however, only to material that is still held for scheduled purposes, and not to material that is no longer required, even though it may have been used in the past for scheduled purposes. Such material should be disposed of.
The Bill does not prevent existing holdings of material that have already been used for scheduled purposes being used again for the same purpose, or even for other scheduled purposes, subject to the guidance to be issued by the Human Tissue Authority. The Bill is clear, however, that in future, where consent is given to the use of material for a particular scheduled purpose, the tissue may not be subsequently used for a different scheduled purpose without consent for that purpose. Skeletons currently in the possession of medical students and former medical students may continue to be kept and used for purposes listed in schedule 1 as they are existing holdings under clause 7. Future use of existing holdings will be subject to guidance given in the statutory code of practice, as stated in clause 23. Skeletons may be imported from abroad, but will be the subject of the HTA's code of practice on import and export, and will fall within the regulatory scheme in the same way as any other tissue. The code of practice will ensure that appropriate ethical standards have been applied abroad.
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