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Lord Walton of Detchant: The noble Earl made a powerful case in support of the amendment. Although the Deputy Chairman has not yet called Amendment No. 37, tabled in the name of my noble friend Lady Finlay, who, as I said, is in a Select Committee at the moment, it is relevant to mention the points that arise from that amendment. They make me convinced that, despite the force of the argument advanced by the noble Earl, Lord Howe, the amendments must be considered with some caution. As he said, it is particularly unfortunate that the revision of the coroners' rules has not taken place before the Bill has been tabled for debate in your Lordships' House.
The legislation at the moment is unclear. When the end of an inquest comes about, if there is no police case many coroner's specimens are returned. But if no tissue is retained there is always a possibility that in future there might be a miscarriage of justice. If there is an appeal against a conviction and it turns out that there may have been a wrongful conviction of an individual accused of a violent crime, it is crucially important that material is retained to be examined again when such a possible miscarriage of justice arises.
There is also the problem that unless material from coroners' post-mortems is retained for study by forensic pathologists or for those in training, the next generation of forensic pathologists will not be able to gain the experience of studying material on which so often crucial decisions need to be made.
Therefore there is some conflict between the amendment tabled by my noble friend Lady Finlay and those tabled by the noble Earl, Lord Howe, and spoken to by the noble Lord, Lord Clement-Jones. It is important that the Minister should, if possible, clarify the situation. It is important that this matter should be resolved and attention paid to this dilemma when the coroners' rules are being revised.
Baroness Andrews: As the noble Earl said, this is a very important part of the Bill. It is a response to a very troubled history which we wish to ensure does not happen in the future. The noble Earl spoke powerfully and gave an accurate account of the situation and circumstances that led to the inquiries that we all know about. We are unable to accept the amendments for different reasonsone more positive than the otherin the light of what he has said.
Let me deal with Amendments Nos. 38 and 39 first, along with Amendment No. 36. The noble Lord said that this was a case of the dog who failed to bark. I do not want to extend the analogy to ridiculous lengths, but we believe that we have got a dog with a bit of a bark and a bit of a bite in this Bill. I hope I can convince him of that.
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I quite understand why the noble Earl is trying to put on the face of the Bill a prohibition on coroners authorising storage and use of tissue of deceased persons for the purposes of research, education and training. Amendment No. 39 proposes a new subsection (4) which requires the coroner to notify the next of kin or nominated representative when material is retained following a coroner's post mortem.
We would argue, in the most generous sense, that the amendments are unnecessary in different ways. Let me deal, first, with proposed subsection (3). Coroners are already subject to the statutory provisions of the Coroners Act 1988 and to any relevant case law. It is from this law that the coroner derives his authority, and there is nothing in the Coroners Act which gives coroners authority to direct post-mortem tissue to be retained for research or training, nor have the courts held otherwise. There is already no lawful authority for a coroner to do the things that the amendment seeks to ban; and where the coroner has no authority, the consent requirement of the Bill will apply.
The noble Lord described the practice and the unsatisfactory situation that led to the Alder Hey and Kennedy inquiries and so on. We have tried in the Bill to clarify and strengthen the conditions attached to the coroner's function, which are set out in the relationship between Clauses 1 and 11. The Bill makes clear at Clause 1(1)(a) to (c) that the removal, storage or use of material from a deceased person for any scheduled purposesthat is, any purpose listed in Schedule 1is subject to the necessary consent.
Clause 11 states, in effect, that Clause 1 does not apply in the case of activities done for the purposes or functions of a coronerthat is to say, beyond what is needed to fulfil his duty to investigate the cause and circumstance of death. So where the coroner has no authority, Clause 1 applies, and the coroner has no authority to authorise storage or use for research, education, training and so on. So there is no question that Clause 11 might confer on coroners any authority to authorise these things and, consequently, there is no need to specify that the clause does not do so.
The amendment will not have any meaningful effect. We have discussed in this House many times the importance of putting in the Bill and passing only legislation which has meaningful effect. The amendment would not bring any additional clarity or benefit.
Secondlyand this is where we come to the bite of the dogwe have strengthened the law in relation to any abuse of a coroner's powers. If the coroner, without authority, were to cause material to be stored for research or another scheduled purpose, he would risk being in breach of the offence at Clause 5(2). This is where a person falsely represents to another that consent is not needed for the storage or use of material for a scheduled purpose. So any coroner purporting to authorise retention for such purposes would render himself or herself liable to disciplinary proceedings by the Lord Chancellor, or, in the worst cases, criminal proceedings. That is a very powerful new force.
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The noble Earl referred to the case of Mr Isaacs. Let me just say how that case would now fit within the Bill as drafted and answer the specific questions he raised. The Bill clearly requires consent for retention or use for scheduled purposes other than where the coroner requires it for his purposes. As I have said, his purposes concern the cause and circumstances of death. As soon as the coroner is able to say that the brain is not needed for his purposes, consent would be required. If the coroner's office decided to offer it for research without consent or indeed for any other scheduled purpose without consent, that would be an offence.
In relation to the three questions raised, blocks and slides would require consent by the relatives. The coroner cannot authorise material to be used for research while he is still conducting his usual functions. He cannot authorise that, but with his agreement the family could authorise such consent. In relation to the mechanism for consent, once the coroner's work is finished, the coroner's rules will provide for that and the families will certainly be notified.
On Amendment No. 39, I can give the noble Earl positive news indeed. I assure him that work is already in hand which will achieve what the amendment seeks; that is, transparency. We are entirely at one with the noble Earl on that. Against the background which has made the Bill necessary, we have been concerned to improve the entire process of informing and involving families in what happens after bereavement. I am sure that the noble Earl knows the guidance we have put out in Families and Post Mortems. The Home Office is, indeed, in the process of revising the coroner's rules to tighten up the existing procedures. I hear what Members of the Committee have said about the fact that we have not had them before us. However, I understand that those rules will make it clear that the coroner must discuss with pathologists how long the tissue will need to be retained; will notify next-of-kin of any retention of organs or tissue for his specific purposes, that is, the investigation of the cause and circumstances of the death or identification of the deceased; tell the next-of-kin what options are available for what should happen subsequently to the material; and pass on to the pathologist dealing with the matter any wishes in that regard which the next-of-kin may have expressed.
As I have said, since the report that revealed the shoddy and dreadful practice which made the Bill necessary, much has been done in the past year to build on good practice to improve support for families following bereavement. There is an overwhelming need for these issues to be handled as sensitively as possible. The relatives will be kept informed of the position and have the opportunity to make any necessary funeral arrangements.
These matters are of particular interest to the Royal College of Pathologists. I understand that the Home Office has undertaken to consult with the Royal College of Pathologists on the revised rules before they are made. A draft is expected to be available by the end of the month. I hope the Committee will see that as
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good news and that those who expressed concern will welcome that progress. The intention is for the new rules to be made by the end of the year.
With regard to Amendment No. 37, tabled by the noble Baroness, Lady Finlay, the intention is precisely to give the coroner the kind of powers that I have just said he does not have, which we think he should. He may not order retention beyond what is needed to fulfil his duty to investigate the cause and circumstances of death. The coroners' rules will elaborate on the detail of how that will be communicated and families enabled to take charge once the coroners' work is completed.
The amendment would cut across the most important element of this Bill; namely, the consent of the family must determine what happens to the tissue or organs no longer required for a coroner's purposes. To extend coroners' purposes in this manner could be seen as a backdoor way of reopening more organ retention scandals. So we do not agree that the retention of any tissues or organs should be retained in perpetuity under the coroner's authority.
The Human Tissue Bill makes the consent of the family the fundamental determinant of retention of tissue, except, as I have said, where retention is required by the coroner for his legitimate purposes. Families will be able to give their consent, if they choose to do so, for the retention and use of organs and tissue for purposes, including medical research. We know that in the vast majority of cases they will agree to that. But to authorise retention where there is no further coroner's or criminal justice interest against the wishes or without the knowledge of the family would be unthinkable.
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