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Thursday, January 13, 2011

Presumed consent row loses the plot

To be frank I am astonished at the way that the row about the Welsh Government's bid to secure legislative competence over organ donation has blown-up. Campaigners are right that if we had the law-making powers that will come after a 'yes' vote in March, then a bid of this nature would not be necessary.

However, it seems to me that the problem does not lie in the reluctance of the UK Government to pass on the powers, but in the legal advice that suggests that the the scope of the Government of Wales Act 2006 is being stretched too far by the suggested legislation.

On the one hand the Attorney General is suggesting that the LCO is outside the devolved areas, and that there may be practical difficulties in having a different system in Wales for organ donation to that in England. On the other hand the Health Minister says that the Welsh Government's view is that the order was lawful. All of that can be dealt with as part of the scrutiny process when we can see what is possible.

However, the fuss seems to be over the timing of the UK Government's response. It is a storm in a teacup. The fact is that this bid has come very late in the day. Not only was it submitted to the Wales Office as late as August but AMs themselves are going to have less than two weeks to take evidence on it and examine the order. That is the real scandal, the way that proper scrutiny is being curtailed in the Assembly because the elections are so close.

Listening to Cheryl Gillan on Radio Wales this morning the last minute e-mail that was sent by the Attorney General outlining concerns came as a result of a request from the Welsh Government for information the day before. They should be praising him for responding so quickly, not a known feature of Government law officers, not attacking him for saying what he thinks.

Personally, I hope that this bid is ruled to be lawful and is successful. I also hope that following a 'yes' vote on 3rd March we never have to go down this route again. But in the meantime, we have no choice but to follow due process and we should not be moaning about it just because the Government left it to the last minute.

One last point: on the radio Cheryl Gillan was asked whether she supported presumed consent and was reminded that she and other MPs tabled their own bill in 2002. Alas her memory failed her and she denied it. Fortunately, we have the investigative powers of BBC journalist Vaughan Roderick who tweeted a link to the relevant record last night:

ORGAN DONATION (PRESUMED CONSENT AND SAFEGUARDS) (No. 2)HC Deb 10 July 2002 vol 388 c904 904
§ Mrs. Cheryl Gillan, supported by Mr. Stephen O'Brien, Dr. Julian Lewis and Mr. Desmond Swayne, presented a Bill to provide for the removal of organs for transplantation purposes, after death has been confirmed in a person aged 16 or over, except where a potential donor previously registered an objection or where a close relative objects; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 19 July, and to be printed [Bill 169].

I don't suppose she will thank me for pointing that out.
I don't support PRESUMED CONSENT at all. It is equivalent to the state saying it has first dibs on your body. Outrageous.
There is no legal title in a cadaver as far as I am aware.
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