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Column Number: 181
Standing Committee G
Tuesday 3 February 2004
(Afternoon)
Mr. Alan Hurst
Clause 18
Procedure on reconsideration
Question proposed, That the clause stand part of the Bill.
2.30 pm
The Parliamentary Under-Secretary of State for Health (Dr. Stephen Ladyman): Earlier, the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for South Cambridgeshire (Mr. Lansley) asked about the compatibility of the group of clauses on licensing with the European convention on human rights, particularly article 6 and the right to a fair trial. Therefore, I thought that it might be helpful if I spelled out why we believe that the Bill is compatible with article 6, and gave the Committee the opportunity to debate the matter before we proceed.
Paragraph 11 of schedule 3 sets out the procedure for licensing decisions. The Human Tissue Authority, through the relevant inspectorate, will give prior notification of proposed decisions to the applicant, licence holder or designated individual, together with reasons, and the person to whom notice is given may make representations to the authority about the proposed decision. Under clause 16, the appellant may then require the authority to reconsider the decision. That reconsideration will be undertaken by an appeals committee of the authority, one or more of which it is required to maintain by clause 17 to carry out its obligations under clause 16 to reconsider decisions. The committee will consist of members of the authority—not fewer than five and with a quorum of three. To answer the point made by the hon. Member for South Cambridgeshire, it is to be expected that those members will not have been involved in the original decision.
The Human Tissue Authority, as a public authority, must act compatibly with the convention when carrying out its functions. The procedure on reconsideration is set out in clause 18. The appellant or his representative may attend before and be heard by the appeals committee. Under clause 19, a person aggrieved by a decision on reconsideration may appeal to the High Court on a point of law. I hope that that will satisfy the hon. Gentlemen who raised the issues.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.
Clauses 19 to 22 ordered to stand part of the Bill.
Column Number: 182 Clause 23
Preparation of codes
Mr. Andrew Lansley (South Cambridgeshire) (Con): I beg to move amendment No. 85, in
clause 23, page 14, line 13, leave out 'may prepare' and insert
'shall prepare one or more'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 14, in
clause 23, page 14, line 13, after 'prepare', insert 'or approve'.
Mr. Lansley: We have discussed codes of practice from various viewpoints during previous debates, so I should like to deal with a number of specific issues relating to the preparation of such codes. The amendments are designed to explore two issues.
First, the legislation says:
''The authority may prepare codes of practice''.
I understand that it is the intention that it will produce them. The ''may'' in this context appears because the codes are in the plural, therefore the wording is permissive as to the number of codes that the authority has to prepare. Representatives of a couple of bodies raised with me the concern that they were unclear on how the authority could proceed other than by preparing codes of practice, and that, therefore, it should be specified in the legislation that they shall do so. Of course, if we were to say ''shall prepare'' codes of practice, there would be a question of how many codes the authority was to prepare. Therefore, I have phrased the amendment slightly differently, because
''shall prepare one or more''
codes of practice seems to be consistent with the intention of the Bill and a little clearer.
Amendment No. 14 would permit the authority to adopt codes of practice that have been prepared by other bodies. For example, the Royal College of Pathologists has its own guidelines for the conduct of post mortem examinations, and no doubt there are others of which I am not aware. The range of activities that has to be dealt with under subsection (2) is sufficiently wide that the measure will no doubt impinge on a range of bodies that have been involved in scrutinising and giving guidance.
It might be excessive for the authority not to be able simply to approve existing guidelines in order to issue a code of practice. If it were to do so, the provisions on consultation would have to be complied with in the same way because such guidelines would assume the formal status of a code of practice of the authority. However, it would be transparent that the authority was approving an existing code rather than, necessarily, starting from scratch.
The purpose of amendment No. 14 is to permit the authority to approve codes of practice that are prepared by other bodies. Although that may be done in relation to one or two issues, it does not mean that that will not be extended in future. If, for example, the authority wanted to take a more self-regulatory approach with the professions, it could permit some of the professional bodies to take responsibility for
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preparing codes of practice and then, under the legislation, approve them. That possibility—not requirement—might commend itself and, in the spirit of future, flexibility would be advantageous. I hope that both those arguments commend themselves to the Committee.
Dr. Richard Taylor (Wyre Forest) (Ind): I strongly support the amendments. The Minister was kind enough to provide me with a copy of the code of practice on families and post mortems, which is very recent—it was written in May 2003. It answers many of my questions; to be honest, it answers one question more satisfactorily than she did. It is vital that we have at least the reassurance that existing codes will be taken into account when new ones, if required, are constructed.
The hon. Member for South Cambridgeshire mentioned the Royal College of Pathologists guidelines on autopsy practice. Those came out only in May 2002, and will certainly remove some of the almost ghoulish practice that some of us as young housemen and students were appalled to see carried out in the long-distant past. I strongly support the view that codes of practice introduced by the Human Tissue Authority should be built on some of the very satisfactory existing guidelines.
The Minister of State, Department of Health (Ms Rosie Winterton): I shall start by giving a little background. The Bill empowers the Human Tissue Authority to prepare and publish codes of practice, and sets down the matters with which it must deal through the codes. In bringing all those issues together under the Human Tissue Authority and ensuring that common principles are applied, our aim is to ensure a consistent approach to all matters relating to the keeping and use of human tissue that fall within the broad remit of the authority.
Many of the codes are to be subject to approval by the Secretary of State and are to be laid before Parliament so that the process can be observed and overseen at the appropriate level. As the hon. Member for South Cambridgeshire set out and as the hon. Member for Wyre Forest (Dr. Taylor) remarked, amendment No. 14 envisages the authority receiving and approving codes that have been prepared elsewhere. However, it would be inappropriate for the codes to be approved by the authority and then approved again by the Secretary of State.
The hon. Member for South Cambridgeshire referred to the Royal College of Pathologists guidance on the conduct of post mortems. It would be perfectly acceptable for the royal college to have particular guidance available that it was appropriate to issue to its members. The Human Tissue Authority might use that as a basis for its own code of practice. However, it is not necessarily true that all the objectives would be identical. We would not expect the authority to take on board and approve a document as it stands without a period of consultation, consideration and reflection. However, we would expect it to look at such codes
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from a slightly wider perspective. That would not stop the Royal College of Pathologists and other professional bodies considering whether they wish to give additional advice to their members.
The authority should take a common-sense approach. If guidance were available that could form a basis for the codes of practice, the authority would take that into consideration. We want the theme of its work to be consultation with others who are involved. It would be inappropriate for the authority almost to rubber-stamping something that had been put together by perhaps only one group without considering some of the wider implications. At the beginning of the process, we would want the authority to engage in wider consultation. A common-sense approach would obviously be adopted, and where good guidance was available, we would certainly expect it to be taken into consideration.
Amendment No. 85 would make it mandatory for the authority to prepare at least one code of practice, but we do not think that that is necessary. I draw the attention of the Committee to the structure of clause 23. The authority is empowered to prepare codes under subsection (1) and it is required to cover in those codes the matters set out in subsection (2). The authority would be unable to fulfil the statutory requirement in subsection (2) if it were not to prepare codes under subsection (1).
There is an important point to that. If we were to say in subsection (1) that the authority must prepare codes and to specify in subsection (2) what those codes should cover, one might suppose that subsection (2) represented an exhaustive list. Obviously, that is not our intention. We intend that the authority should cover the matters listed in subsection (2) but that it should be able to prepare codes on other matters within its remit as it sees fit. As time moves on—this relates to the discussion that we had this morning—the authority may need to give guidance in circumstances that we cannot anticipate today. In addition, a single code might cover both the storage and use of tissue from living patients, while another free-standing code might cover the conduct of anatomical examinations. As I said, all those matters are covered in subsection (2). Furthermore, to return again to this morning's discussion, the authority might have to give guidance on some aspect of public display or on arrangements for live transplant. Those are just some examples of how things might move on and of how we will need flexibility to deal with such developments.
2.45 pm
I understand the intention behind the amendments, but the powers in subsection (1) and the specific requirements in subsection (2) set out the right understanding of what we should expect from the authority. They also send a clear signal that the authority can extend its guidance to cover all the activities that fall within its remit if it considers that appropriate. With that explanation, I hope that the hon. Member for South Cambridgeshire will withdraw the amendment.
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