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Earl Howe: There is quite a lot I could say in reply to that. However, I think that I am going to have to be content with the noble Baroness's assurance that the codes of practice will deal with this matter adequately. As I mentioned earlier, the case that is uppermost in my mind is that of Mrs Isaacs. It would be absolutely intolerable if someone such as Mrs Isaacs discovered that the brain of her husband was being held in a tissue bank and that she had no legal right to say to that tissue bank that the brain should be returned to her for decent disposal. We can have all the codes of practice in the world, but without that legal right I suspect that someone might feel very vulnerable.

However, the issue is whether this is a matter for the face of the Bill. I shall have to go away and reflect on that. I will simply say this. The intention of the amendment was one that the noble Baroness rightly picked up, regardless of the actual phraseology of it, which no doubt has unwelcome consequences. But I am convinced that the intention is right in principle. It is now just a question of my deciding how to take the issue forward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Existing anatomical specimens]:

[Amendment No. 35 not moved.]

Clause 10 agreed to.

Clause 11 [Coroners]:

Earl Howe moved Amendment No. 36:

The noble Earl said: In moving Amendment No. 36 I shall speak also to Amendments Nos. 38 and 39.

Clause 11 presents us with a prime example, if ever there was one, of the dog in the night-time who fails to bark. It contains what for many of us is the most unsatisfactory feature of the whole Bill; namely, the exclusion from the scope of the Bill of any activity done for purposes of functions of a coroner.

When we call to mind the events which led to the creation of the Bill in the first instance, many of which stemmed from actions taken or not taken by coroners, it is at best ironic and at worst deeply regrettable that we cannot debate in any substantive way what we believe the duties of coroners or their codes of practice should look like.
 
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The first observation I would make about the clause is that the phrase,

is not defined. Indeed, we understand that, even as we speak, the definition is being thrashed out by Ministers and officials in the Home Office in preparation for the publication of the new coroners' rules later this year. The fact that the publication of the rules and the passage of this Bill through Parliament has not been synchronised is, I believe, most unfortunate.

But we have to face reality. Clearly the most we can do in debating the Bill is to lay down some markers. The first marker is surely to say that the demarcation line between a coroner's statutory core functions and those things which are not core functions but which, nevertheless, he may do under his own authority, needs to be much clearer than is currently the case. Equally, there are things which a coroner may do under his own authority which should quite properly override the general provisions of this Bill, and other things which he is able to do which ought not to override them. At what point should a coroner's authority cease and the wishes of a nominated representative or relative kick in?

That question rose to the fore in the case of Mr Cyril Isaacs, whose brain was passed by the North Manchester Coroner's Office to a research programme at Manchester University. That was done not only without consent, but also contrary to the express wishes of his family. The brain was removed and transferred to the researchers, having been identified by staff at the coroner's office as being of possible interest to a joint research programme run by the departments of psychiatry and physiology at the university. It is not unfair to say that this came about as a result of a cosy, informal relationship between those departments and the coroner's office.

In fact, as the official report disclosed, over 21,000 brains, collected between 1970 and 1999 were found to be held at various centres, most of them from coroners' cases and a great many without consent. It would appear that once the coroner's work on a body had been completed, it was generally thought best that the brains should be used for research rather than being disposed of as waste.

Unlike brains collected from hospital post-mortems, where consent procedures were usually followed scrupulously, the consent process in coroners' cases was either fudged or ignored. There was a widespread ignorance of what the consent requirements were in such cases, as well as an assumption that the coroner had the authority to retain any organ, irrespective of whether it had a bearing on the cause of death.

The issue of what is and is not within a coroner's authority is therefore of central importance in the context of this Bill. Yet when we look to the Bill to define the necessary powers and duties of coroners, we look in vain. The least we can do is to lay down some pointers. As a start, I see no harm, as my amendment proposes, in us specifying in the Bill that coroners have
 
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no power to authorise the retention of tissue for the purposes of research into general human health. Various detailed questions arise from this which I could ask the Minister to address.

Where a post-mortem is carried out, blocks and slides often remain on the medical record. Is this a matter which the coroner can authorise himself or does it require consent from the relatives? That is the first question. In a coroner's post-mortem, could the coroner authorise the use of relevant tissue for audit, quality control and education until such time as the cause of death is established and the coroner's interest in the body ends, or would that again require consent from the relatives? Once a coroner's interest in the body ends, if tissue from the dead person is to be used subsequently, what will be the mechanism for seeking consent from relatives? The extent of the coroner's authority is the first issue addressed by Amendment No. 38.

Secondly, and even more importantly, we can ensure that coroners are subject to the one requirement that will render a recurrence of the Isaacs tragedies unlikely. That is transparency. If a coroner is under an obligation to notify a dead person's nominated representative or relation but the body or a body part is being stalled, for whatever purpose, under his authority, the coroner's actions will be exposed to the light of day and the family will be in a much better position to assert their rights at the appropriate time, once the coroner has completed his work.

Transparency is the one sine qua non of a coroners' system, if it is to be one in which everyone has confidence. Even if the Bill cannot go into the detail of the coroners' rules, I see no reason why it should not contain a provision to put that basic requirement for openness and transparency into effect. I beg to move.

Lord Clement-Jones: I just want briefly to support what the noble Earl, Lord Howe, said. I can in no way match the work that he has done considering this area, but it seems rather paradoxical, when one considers the foundations of the Bill, which is, effectively, the Alder Hey inquiry, to find that coroners are in a sense completely outwith the provision, given that so much of the debate in that case related to the product, if you like, of the coroners system.

Also—again, I come back to what the Parkinson's Disease Society had to say—there is concern about the tension between the coroners system and the Bill. As the noble Earl said, we do not have access to the draft regulations and do not know what is being put together and how that will affect what we are debating here. The Parkinson's Disease Society wrote to me:

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That is precisely the point that the noble Earl was making. We therefore strongly support his amendment.


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