Quality and Safety of Organs Intended for Transplantation (Amendment) (EU Exit) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Quality and Safety of Organs Intended for Transplantation (Amendment) (EU Exit) Regulations 2019.

My Lords, I refer the Grand Committee to the comments that I made at the start of the first SI, which also extend to this SI. I beg to move.

My Lords, the Minister has probably now realised that the Grand Committee is not satisfied with the regulations, and it is highly unlikely that the Grand Committee will be satisfied with these regulations on organs, because they concern the cross-border trafficking of human organs. When I read these regulations, I wondered—and I have already asked the Minister to walk us through this on one occasion—how an organ which is in Spain will find its way to Manchester when a match is found. What new barriers will exist with regard to the regulatory framework, inspection, cost and travel if we crash out of the European Union? When we are talking about organ transplants, lives are at stake. I am therefore extremely concerned that we will find ourselves with people not getting organs that match from other parts of Europe, or indeed with organs in the UK which should be in Ireland. I know that there is a great deal of trafficking of organs from hospitals across the Irish border. There are therefore some serious problems here, but they have been mentioned by many noble Lords in Grand Committee over the last three hours or so. I do not necessarily agree with the noble Lord, Lord Tyler, about unicorns, but on the other hand, these orders made me extremely worried that they are not deliverable. I hope that the Minister might on this occasion be able to convince us that they are.

My noble friend knows an awful lot more about House of Lords procedure than I do, so I seek her advice. If I were in the other place, as I was for 26 years, I would know exactly what to do. I would ask the Chair, Speaker or whoever was responsible whether it is really in order for us to consider going ahead with something that will involve more expenditure by the Department of Health and its excellent officials, who are sitting behind the Minister, given that the House of Commons decided against a no-deal Brexit yesterday. In other words, we are doing something that seems ultra vires: working on the basis of no deal, which is now not just unlikely but, pray, certain not to take place because of yesterday’s decision. How can we challenge this? How can we stop going ahead with the farce of considering these statutory instruments when we are aware of a decision taken in the other place? Should it be raised with the Clerk of the Parliaments?

I would love our present Deputy Chairman of Committees to rule on that because she is a wise woman and would rule wisely but, sadly, she does not have the power to do so. She knows, as do others, that I have raised many times on the Floor of the House the matter of giving more powers to the Speaker and, following on from that, to the Chairman of Committees, but I have got nowhere. I want to ask my long-standing friend and experienced parliamentarian, the noble Baroness, Lady Thornton, whether there is any way for us to put the Minister out of her misery and abandon both these statutory instruments and those that the noble Lord, Lord Bates—poor him—will have to struggle to deal with. How can we do that?

My noble friend tempts me to step outside my pay grade. That is not my job.

They do not pay you for that.

That is true. I forgot that bit.

You should be.

It is not my job to say whether our discussions are ultra vires. The Constitution Committee might usefully address that issue at some point, but this Committee has already made its views quite clear to the Government during the debate on the previous two statutory instruments. I am happy to say that this matter is the Committee’s responsibility.

My Lords, does my noble friend share our concern that although we have made our views known to the Government, we have had no response? The Minister, whom we respect for the great predicament she is in this afternoon, has not been able to respond at all to the fundamental question underlying this afternoon’s proceedings of whether there is an adequate legal or moral basis for us to debate these statutory instruments when yesterday, the House of Commons—the supreme, elected body—voted specifically against no-deal preparations precisely because it did not want to see these arrangements, which it described as a Brexit “game of chicken”, put in place. Does my noble friend not think that as the Opposition, it is our job to hold the Government to account? Perhaps this debate must happen in the Chamber—as the Minister said, this is above her pay grade—but we need to be robust in asking why these statutory instruments and no-deal preparations are proceeding, as well as why £4 billion is being spent, in a situation that looks legally dubious and morally bankrupt after the Commons vote last night.

Along with the noble Lords, Lord Deben and Lord Tyler, and other noble Lords, my noble friend has done rather a good job of ensuring that these issues will be taken to where they belong: the Floor of the House.

My Lords, we have had a lengthy debate, but it has been extremely helpful and important, and that was best illustrated during the debate on the previous instrument, in the answer the noble Baroness, Lady Manzoor, gave to my question about the inspection of premises. I made the point that the noble Baroness has repeatedly said that this is about ensuring existing arrangements continue. When I challenged her, she was given instant advice that we were talking only about the question of importing organs and tissue, not exporting. That is brilliant; in effect we are not, in a no-deal scenario, going to continue with an existing arrangement for the EU 28, but will, from that point on, be a third country. Whatever we may wish or hope for, the EU will be under no obligation to treat us under continuing and existing laws. Therefore we will inevitably be at a disadvantage. That was extremely helpful.

But does that not also underline what my noble friends says: that this is not a change in any way? What we mean is that were there to be a no deal, it is not this that changes but that the world changes, and this does not address that change. Therefore the problem is that because that change is not addressed, it will affect us. It will not be as safe or as possible to ensure we can import necessary organs, not just because there will not be any aeroplanes or because there will be problems with boats, but because there will not be a mechanism on that side; we will have a mechanism here. That is a fact of change. Nothing we say will cover the fact that there is a change for which the Government have no contingency plan at all, because they cannot have it.

Yes, and specifically, I want to ask the noble Baroness about traceability. In these regulations it says that the UK is planning to introduce its own coding system once it is no longer taking part in the EU Coding Platform. Is it right to assume that we will revert to a traceability system that was in place before the EU Coding Platform was introduced, and will it be of the same standard that we have now? I suspect it will not, and therefore the Government should be clear and say that in the matter of the importing and exporting of organs—which are, let us bear in mind, in short supply across the world—we are going to place ourselves at a disadvantage.

I will ask one other question. It is clearly stated that a number of powers currently belonging to the Commission are being transferred to the Secretary of State. Does the Secretary of State have the capacity to make changes in relation to traceability, notification of adverse events and testing to establish whether tissue sent to the UK is free of infection? How can it be demonstrated that new techniques used to process cells and tissues are safe and effective? And what is going to be the cost of that to the NHS? I am not holding my breath, but I would say that the evidence of the last three hours suggests that this Government are prepared to take a massive gamble with the health of our population.

I put a question to the noble Baroness, similar to the one I put to my noble friend. Tomorrow, on the Floor of the House, her compatriot, her fellow Liberal Democrat, the noble Lord, Lord Beith, has a question:

“To ask Her Majesty’s Government what assessment they have made of the Parliamentary time required for the consideration and approval of statutory instruments arising from the United Kingdom’s withdrawal from the European Union”.

Would that be a good opportunity to raise the question about ultra vires?