Public Bodies Bill [HL]

Baroness Warwick of Undercliffe Excerpts

Tuesday 9th November 2010 Lords Chamber

[Baroness Warwick of Undercliffe]

My Lords, I must declare an interest as chair of the Human Tissue Authority, one of the bodies affected by this Bill. As part of my intervention, I hope to be able to elicit from the Minister some answers to questions about the way in which the proposed legislation will affect the authority and its work. I also have some general concerns about the Bill, which reflect many of the concerns expressed by Members across the House during this debate, and which I hope the Minister will be willing to address when he replies.

The desire to improve public services and to deliver them ever more efficiently and effectively is common to all Governments. Earlier this year, my own party, when it was the Government, set out its own plans for streamlining public administration, which included reducing the number of arm’s-length bodies. So there is no real difference, it seems to me, in the objectives of the current and the previous Government in this field. It is clearly the case that such bodies should be regularly reviewed, their functions and continuing relevance questioned, and their effectiveness assessed. But the way in which this is done can have far-reaching effects.

The Government have determined that the functions of the Human Tissue Authority and those of the Human Fertilisation and Embryology Authority will come under the aegis of the Care Quality Commission and, possibly, other bodies. We have begun already working to that end. We have moved with speed to initiate discussions with the other bodies involved and to work with the Department of Health to ensure that the ground is properly prepared for any such transfer of functions.

It will scarcely surprise noble Lords that when I read the sixth report of the Select Committee on the Constitution, the venerable Select Committee of your Lordships’ House charged with examining all public Bills, I became alarmed. The Select Committee raised serious concerns about the way in which the Government were proceeding on this Bill. It stated—other noble Lords have referred to this—that the Government are,

“pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation”.

It sets two tests against which this extension of powers should be judged and clearly states:

“In our view, the Public Bodies Bill [HL] fails both tests”.

This is not a good start to the winning of public confidence.

The Human Tissue Authority was set up because of a crisis in public confidence. The Human Tissue Act was the response to the Alder Hey and Bristol hospital scandals where, noble Lords will recall, there was unauthorised retention of babies’ organs and tissue. It was the response to overwhelming grief, as well as outrage from parents and parent groups. The Act was not a knee-jerk reaction. It took many months of parliamentary time to get right, and it introduced clear rules which continue even now to allay public concerns about tissue retention.

While huge progress has been made since the HTA’s regulations came into force, and the sectors we regulate have now, on the whole, a good record of meeting safe and ethical standards, it is clear, when I talk to families who were involved, that the Human Tissue Act, and the existence of the authority, have been a guarantee that those concerns have not been ignored. Such issues are, and remain, deeply sensitive. We have seen such fears raised again in last weekend’s media. If the authority is to be changed or merged, it must be done in a way that does not destroy the public confidence that has been so hard-won. I hope that the Minister will reassure the House that the primary legislation which generated that confidence will not be undermined by the use of what your Lordships’ Select Committee clearly regards as a parliamentary manoeuvre.

I turn to some specific questions for the Minister about the impact of these changes on bodies such as the HTA. The HTA has built up considerable professional expertise in relation to the sectors it regulates. This has helped to build the confidence of the public and professionals. Recent data show that this confidence continues to increase. This is largely due to the clear focus of the Human Tissue Authority in the highly specialised area of tissues and organs. Therefore, my first question to the Minister is this: how will the Government ensure that the clear focus on this “extraordinarily sensitive and complex” area—the Government's own words—will be maintained in any transfer of responsibilities? My understanding is that the Government do not intend to use the Bill to change the substance of the regulatory framework within which the HTA operates, nor that of the Human Fertilisation and Embryology Authority. Indeed, I believe that this would not be within the scope of the Bill; it would be good to have the Minister's confirmation of that. But if that is the case, the body to which functions are to be transferred—the Care Quality Commission—would have to operate under its own current legislation, as well as that of the HTA and the HFEA. How will the Government ensure that this does not compound the likely loss of focus on the safe and ethical use of human tissue and organs? Of course, the Government may intend to legislate to harmonise the legislative frameworks under which the CQC will operate, but if there is to be primary legislation in this extraordinarily sensitive area, when will it be brought forward and what effect will this have on the timetable for changes?

On organ donation, last year the HTA approved well over 1,000 living organ donations and I am delighted to say that the numbers continue to increase. However, the ALB review acknowledges that this responsibility would not sit well with other bodies. How can the authority be assured that its respected role in relation to organ transplants will be maintained? The HTA has to make sensitive, ethical decisions about organ donation. Its lay and professional authority members bring great wisdom to these questions; how will that wisdom be maintained and retained?

Perhaps these and other questions that I have can be resolved in discussions with the Department of Health and with the other bodies. However, many of them seem to be matters that ought to be of concern to Parliament, as they were when the legislation was introduced. The Government are quite clear that they want the work of the HTA to continue; the authority is committed to ensuring that public confidence will be maintained. It would be a betrayal of the work that produced the human tissue legislation and of the thousands of families that the legislation has served well if the Government took any action that undermined confidence that human tissues and organs are used safely, ethically and always with consent.