The amendments deal essentially with the same point. The clause relates to the coroner's powers. As we understand the position, we are not legislating to interfere with their existing practices, which is fine. Indeed, subsection (1) states:
''Nothing in this Part applies to anything done for purposes of functions of a coroner or under the authority of a coroner.''
What is done under the authority of a coroner that is not for the purposes of their functions? Why does the clause say:
''or under the authority of a coroner'',
rather than ''and under the authority of a coroner''? An action would then have to be both for the coroner's purposes and with his authority.
Amendment No. 25 relates to subsection (2)(b), which specifies that people who deal with material that should be in the hands of the coroner for the purposes of the coroner cannot act on the authority available under clause 1. However, the end of subsection (2) adds the words:
''except with the consent of the coroner.''
Like the ''or'' in subsection (1), that suggests that we are dealing with activities that go beyond the purposes of the functions of a coroner, but which coroners may authorise in lieu of consent. I am not at all sure that we intend them to act in that way. As it happens, amendment No. 26 makes the same point on requiring an activity that is no longer for the purposes of the functions of a coroner to be undertaken with appropriate or qualifying consent, depending on whether it is a scheduled purpose or DNA analysis.
The question at the heart of the amendments is, therefore, whether the Government permit activities that go beyond the functions of a coroner, on the authority of a coroner who is acting in lieu of consent. That was not our understanding of the purpose of clause 9.
The intention is certainly that the Bill should not interfere with the powers and duties of coroners. I think that we all understand that. However, coroners have a duty to act in different circumstances, and we would not want a nominated representative to interfere with those duties. I am sure that there would be no dispute between us over the fact that the coroner's powers should be protected if he suspected, for example, that something had to be investigated. However, coroners have other, wider duties under case law. For example, they may wish to order the storage and retention of bodies for the purposes of a defendant who needs the material to mount a defence in a case in which they are accused of having acted improperly. The coroner therefore has a wide range of responsibilities, which we must ensure are protected.
Amendment No. 13 would constrain a coroner from giving, in the interest of justice, a lawful direction to retain a body or human remains. If a coroner were able only to authorise retention or use in connection with his statutory functions, the nominated representative or person in a qualifying relationship would be able to prevent further examination of the remains on behalf of a person charged with connection of the death. That could result in failure to convict the guilty or acquit the innocent.
As the Bill stands, the coroner's interest is protected, but we are discussing the impact of the hon. Gentleman's amendment on the Bill. I believe that he can be reassured.
Let me explain to the Under-Secretary. Even if he were right about the impact of our amendment—I do not concede that he is—the example he is using is drawn from the conduct of a prosecution, but the conduct of a prosecution is specifically exempted from the impact of clauses relating to consent by the terms of clause 40(1)(b).
It has been suggested to me that clause 40 relates only to the licensing regime under part 2 and not consent under part 1, so that is probably the technical answer to the hon. Gentleman's question. However, we are not necessarily talking about the coroner's duties in respect of a prosecution. There may be a wider duty for the coroner to protect evidence in relation to other matters where people have been wrongly accused or may feel that material is necessary to some future action. It is those powers that we need to protect.
My hon. Friend the Member for Leyton and Wanstead raised the point during the previous session that we have to protect the duty of a coroner to carry out his wider functions and not allow people who may be nominated or in a qualifying relationship to interfere with those duties. That is how the Bill is drafted.
The Under-Secretary talked about needing to protect the ability of the coroner to carry out his wider functions, but surely that would be covered by the first part of subsection (1), which states:
''purposes of functions of a coroner''.
Therefore the alternate phrase—
''or under the authority of a coroner''—
is not required.
No. The Bill protects those functions. I do not believe, as the amendment suggests, that the Bill weakens the protection of coroners. It is on that basis that I think the amendments are flawed.
There may be a limited number of other circumstances in which a coroner should be able to act judicially to retain material for a proper purpose, and it would not be appropriate to seek to qualify how a coroner might exercise his discretion under the common law. That would have, and could have, unintended and unhelpful consequences. It would not enable a coroner to authorise storage or retention of material for purposes that will require consent beyond the period for which he has jurisdiction. I hope that that is one assurance that the hon. Gentleman sought. We are not attempting to give coroners new powers that would override the golden thread of the necessity of consent for other purposes that we have built into the Bill.
On amendment No. 25, the aim of the existing provision in subsection (2) is simply to ensure that the coroner has the power to prevent an action that might interfere with his duty to investigate as long as he has jurisdiction of the body. We do not consider that the provision introduces any new requirement for
pathologists to seek express consent from the coroner to remove or retain material in connection with the investigation of the death.
Has what the Under-Secretary just said tackled the issue raised by the Royal College of Pathologists? It states:
''The Explanatory Notes state that the purpose of Clause 9 is to exempt from the Bill anything done for the functions of a coroner or under his authority. However, the Bill itself goes beyond this by requiring the 'consent of the coroner' before tissue can be removed and stored. This is contrary to Coroners Rules 9 and 12 which actually oblige the pathologist to make provision for the retention of any material which in his opinion bears upon the death. The coroner's role under Rules 9 and 12 is not to grant 'consent' but to stipulate the period of retention.''
I believe that that statement is based on a misunderstanding. The Royal College of Pathologists believes that there is a conflict between the Bill and coroners rules 9 and 12, under which there is a duty to preserve material that may be relevant to the coroner. That is a misunderstanding. There is no such conflict, and on that basis, I ask the hon. Member for South Cambridgeshire to withdraw his amendment.
I understand and accept the point that was made about amendment No. 25. As far as amendment No. 13 is concerned, I must confess that I was not aware that the phrase the
''purposes of functions of a coroner''
necessarily limited the provision to the statutory functions of coroners, and that there were non-statutory functions of coroners that had to be protected beyond that. If the Under-Secretary is right, I will withdraw amendment No. 13, and take the alternative tack when talking about the next amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 26, in
clause 9, page 8, line 23, at end add—
'(3) Where a body or relevant material has been retained and is no longer required for the purposes of functions of a coroner, no activities to which subsections (1), (2) or (3) of section 1 applies, or analysis of DNA, other than excepted purposes under section 47, may be undertaken other than with appropriate or qualifying consent.'.
In a sense we are looking at the other side of the coin now. If all the functions of a coroner are protected, we come to the question of what happens when a body or relevant material is no longer required for the purposes of functions of a coroner. Amendment No. 26 is intended to make it perfectly clear that the coroner cannot go beyond his functions and use his authority under subsection (1) as a substitute for appropriate and qualifying consent. I am talking about going beyond the point where he has a legitimate purpose in mind.
I may have strayed into a problem in relation to the phrase the
''purposes of functions of a coroner''.
We may need to think about that, and express the proposal differently to embrace not only the statutory
functions of a coroner, but those activities that are ''contingent on'', ''incidental to'', ''consequent upon'', or ''related to'' them. We will have to think of some terminology. We must maintain the protection that the Under-Secretary talked about in relation to coroners' activities, but at the same time we must emphasise that, when a coroner no longer has a legitimate purpose in mind or an activity that he has to undertake, his authority cannot be used in lieu of consent. In such cases, we must rest on the golden thread, as the Under-Secretary put it, of the appropriate or qualifying consent elsewhere defined.
If the Under-Secretary's problem relates to the terminology,
''purposes of functions of a coroner'',
and that is why he does not want to accept amendment No. 26, I would be grateful if he would say that he will think about the intention behind the amendment in order to strengthen the presumption that the authority of the coroner cannot extend beyond the coroner's purposes.
The hon. Gentleman is quite right. As I said on the previous amendment, it is important to protect the coroner's non-statutory duties as well as his statutory duties. We are talking about ensuring that the wider role of the coroner is protected under the Bill. I understand what the hon. Gentleman is trying to achieve. He is trying to ensure that the coroner cannot go beyond his own duties, or the duties we require of him, to override the need to get consent for the use of material.
Or to avoid it. The hon. Gentleman's amendments are unnecessary because the Bill already achieves their proposed effect. It is precisely what the Bill has been drafted to do. Its approach is to establish that the consent of the deceased or that of someone close to the deceased is always needed for storage and use of bodies and tissue from them, except in particular circumstances. The coroner's authority would last only as long as his functions were required; once his functions have been fulfilled, his authority would lapse. The provision in the Bill requiring someone's consent for storage would then come into effect.
Just to be sure, am I right in thinking that if a coroner were to give his consent for something to be done that was not necessary for his legitimate purposes, or beyond the point where he had a legitimate function in relation to a body, the fact that he gave authority would be ultra vires and the coroner himself would be subject to liability and prosecution under the Act?
That is correct. The coroner would be acting outside his authority, and therefore anybody who carried out an action based on that authority would be infringing the Act. The Bill is quite clear that the person would be committing a criminal offence if he did not have appropriate consent and carried out an activity that requires it, unless he was absolved from obtaining consent because he was acting under a coroner's authority. It follows that if he were not acting under a coroner's authority because the coroner
did not possess it, he would be committing an offence. I hope that that is the assurance that the hon. Gentleman needs.
I think that that is the assurance that I am seeking. The Minister and the Committee know that it is not a trivial issue. The retention of the brain of one of my constituents, whose case was described in detail in the Isaacs report, was conducted during a coroner's post mortem. If it were possible for that to be done in the future under the authority of the coroner because the consent provisions in the Bill did not cover it, it would be a serious lapse.
We must accept that one reason for the retention that the hon. Gentleman mentioned was that the people acting on that occasion were unclear about the legal position. We are making the legal position crystal clear and it will be backed up by appropriate guidance, so I hope that that sort of event will not happen if we leave the Bill as drafted.
We are of one mind as to the purpose of the provision. I wanted only to explore whether we were absolutely clear that the Bill achieved its effect. It is worth remembering that the coroner's purpose is to determine the cause of death. The retention of brains, in the case of my constituent and that of Mrs. Isaacs, did not bear on determining the cause of death. As long as we are absolutely clear—I take it from the Under-Secretary assurance that we are—that such activity would be ultra vires to the coroner's powers, would come under the consent provisions and be subject to prosecution, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 ordered to stand part of the Bill.
Further consideration adjourned.—[Joan Ryan.]
Adjourned accordingly at six minutes to Five o'clock till Tuesday 3 February at ten minutes past Nine o'clock.