Clause 11 - Remit

Human Tissue Bill – in a Public Bill Committee at 9:30 am on 3rd February 2004.

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Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 9:30 am, 3rd February 2004

I beg to move amendment No. 28, in

clause 11, page 9, line 28, after 'for', insert 'the'.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

With this it will be convenient to discuss the following:

Amendment No. 83, in

clause 13, page 10, line 35, after 'from', insert 'paragraphs (d) to (f)'.

Amendment No. 106, in

clause 29, page 19, line 19, leave out from 'activity' to end of line 21.

Amendment No. 129, in

clause 33, page 23, line 6, leave out subsection (3).

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The amendments deal with the vexed question of qualifying museums, which appear to have assumed a special status in the Bill. The explanatory notes tell us that qualifying museums are those that are open to the public and do not make a profit. Because of that, they appear to have been given several attributes and exclusions that will make their life much easier. We may all say that that is jolly good, but the Bill is about controlling the way that organs and bodies are handled, and it seems extraordinary that those museums should be excluded.

One concern that has been raised by members of the general public relates to the activities of Professor Gunther von Hagens and his ''Bodyworlds'' exhibition. At the very least, that was controversial. It is a matter of opinion as to whether it offended the public sense of good taste or decency, and although I do not think that any Opposition Members would want to see those activities banned out of hand, there is a feeling that they need to be regulated. Of all the activities that we are discussing, this one needs the light of scrutiny poured upon it. It is unusual and new, at least in terms of this century and the last, so we need to delve into it more closely. We need to ensure that the inspectorates that will be set up under the Human Tissue Authority can scrutinise what is going in exhibitions such as ''Bodyworlds'', and in other activities that could spring up.

We understand that the activities of Professor von Hagens were legally controversial at the time. It therefore seems strange that the Bill has not grasped the opportunity of defining what is permitted and what is not. In respect of the other activities under discussion, and in the context of a qualifying museum, one could say that things are being allowed to become institutionally lax.

The group of four amendments tabled in my name and that of my hon. Friends the Members for South Cambridgeshire and for Rayleigh (Mr. Francois) would degrade the special consideration that qualifying museums are given in the Bill. I hope that the Minister will tell the Committee why those museums, which are defined by having public access and being not for profit, are given such special handling.

Amendment No. 28 is a presentational amendment. It would insert the word ''the'' in connection with purposes. We merely want to quiz the Minister on her grammar. It seems that ''the'' would improve the way that the Bill reads. I would be interested to know whether the Minister agrees with our interpretation.

The remainder of the amendments stem from what I have been saying about qualifying activities, and probably do not need to be explained in any further depth. I draw the Minister's attention to amendment No. 83, which would clamp down on the exemptions that can be enjoyed by qualifying museums. It

mentions specifically paragraphs (d) to (f), which refer to activities about which we would be particularly concerned.

Amendment No. 106 would delete clause 29(3)(b) by removing the exemption that qualifying museums have under clause 29. Similarly, amendment No. 129 would delete the exemption that qualifying museums have from the scrutiny of the inspectorates of anatomy and pathology. In the case of such scrutiny by inspectors, I can think of no more compelling an argument than that they should be able to enter qualifying museums, especially given the novel activities that we have seen over the past few years—I am thinking in particular of ''Bodyworlds''.

It is extraordinary that the Bill should specifically state that those museums are excluded from the inspectors' remit. We do not for one moment say that they should be subjected to the increasing bureaucracy that would come with the inspectors, but it is remarkable that they should be specifically excluded from their scrutiny. Indeed, I hope that the inspectors will be able to help qualifying museums to determine how they might proceed with their exhibits. The amendment is meant to be helpful.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 9:45 am, 3rd February 2004

Will the Minister make clear her perspective on exhibitions such as ''Bodyworlds''? I do not demur from the general thrust of what the hon. Member for Westbury (Dr. Murrison) said, but where certain conditions are met it should be possible for adults to view displays such as those at ''Bodyworlds'' and to watch anatomical examinations. I imagine that those qualifying conditions would involve the clear consent of the people concerned, as in the consent provisions in part 1, and the licensing of the premises and of the person in charge.

I should like the Minister to confirm that the Government will seize the opportunity presented by the Bill to make it clear that they will not censor properly regulated public displays of human anatomy which adults in this country might wish to see. Indeed, engaging in an informed discussion about what happens to our bodies after our death can demystify aspects of human anatomy. Clearly von Hagens's public post mortem or autopsy was not ideal from many points of view. This is an opportunity to establish what is permitted and how such activities will be regulated rather than to use the measure as an excuse to ban such displays completely.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I, too, welcome the amendment and the fact that it seeks clarification from the Minister about exhibitions such as ''Bodyworlds''. As has been stated, the clause puts qualifying museums, which are categorised as not-for-profit museums, outside the authority's remit. I agree with the point made by the hon. Member for Westbury that some of those museums could probably get good assistance from the inspectorate or the authority on how to exhibit their items. Although they will be outside the authority's remit, ''Bodyworlds'' would presumably have fallen within it because people paid to see it; it was done for profit. I know that about

500,000 people saw that exhibition in this country, and on the whole they thought it a worthwhile exhibition. I found it beneficial.

I should like to know how the authority will judge an application like this when it comes before it. Clearly, the Bill's emphasis is on approval and consent, and in this case that would have applied to how the bodies were obtained. I asked the Library to obtain some information for me about the ''Bodyworlds'' exhibition, and I will quote from an interview that Professor von Hagens gave about this time last year. He was asked:

''Is it true that you were illegally supplied with bodies from Novosibirsk, Siberia? If so, are any of them on show in London?''

He replied:

''No. All these allegations are just satisfying the old tradition of mixing body-snatching with anatomy. I agreed that preserved specimens would be sent from Novosibirsk to Heidelberg for plastination and then they would be sent back to Novosibirsk University. They were exported legally— I got the signature of the local customs official and the director of the university. I did not need the consent of the body donors because in Russia, bodies that are not claimed within a certain period of time are transferred by law to anatomy departments. The same law exists in the United States, for example in Maryland. Since the bad publicity, I have cancelled the whole agreement. All the body donors in the exhibition have given their consent.''

The case concerning whether those bodies were obtained legally still continues in the Russian courts. Originally, those supplying them were found not guilty, but now the case is being re-examined. However, the key point in that case was that the law on consent and approval is weaker in Russia and apparently, as Professor von Hagens said, in the United States, and presumably in many other parts of the world. I believe that he is currently having an argument about body parts supplied in China.

Although it is right for us to put the emphasis on consent in the Bill, it will not be possible to tighten the law in relation to an exhibition of that sort unless Professor von Hagens obtains more bodies from voluntary donors in the west, as he has talked about doing. I think that the Human Tissue Authority could have a role in examining that aspect.

There are two other aspects that I want to mention, other than the question of where the bodies came from. One is art. ''Bodyworlds'' was an exhibition that was intended perhaps to shock, to entertain and to make people think. In my view, that is a legitimate purpose, and I wonder how the authority would judge it. Would it have the power to call in art critics to examine that aspect if it were considering such an application?

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I do not think that authorities involved in regulation should be making subjective judgments on artistic merit. If something is, in principle, lawful, it is up to the visiting public to decide on its merits. If it is a lousy exhibition with no artistic, entertainment or educational value, one relies on the paying members of the public who visit it to make that decision.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I hear that point, but my question on the amendment is whether the authority will consider the art aspect at all.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

Does the hon. Gentleman think that Damien Hirst might be co-opted on to the authority?

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

That relates to the point that I am making: how will the authority deal with the art aspect—assuming that that is included in its remit—of such an application? Will it co-opt someone like Damien Hirst, or other critics? Is the Minister saying that the authority should not examine the art aspect, but just consider where the bodies came from and the consent issue, which is the other main theme of the Bill? I do not think that that approach would work for such exhibitions, and it would therefore need to be expanded.

The other point that I was about to make was that exhibitions such as ''Bodyworlds'' have a clear knowledge factor. The exhibition was presented—I was almost going to say that this was the most boring part—as an anatomical exhibition about how different parts of the body work. That was explained in great detail; it was great for a medical student or anyone interested in biology. There might be a case for showing such an exhibition, and perhaps the authority will consider that aspect, or will it be limited to what is rightly the core of the Bill—consent and the origin of body parts? In a groundbreaking exhibition such as this, the authority's remit must be wider. I shall be interested to hear what the Minister says about that.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

This has been an interesting and wide-ranging debate, raising a number of questions about the authority's ability to judge the artistic relevance of different exhibitions. I shall come back to that later. I know that my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) went to the von Hagens exhibition, which he mentioned on Second Reading.

I shall first address the individual amendments and then explain how we intend to address the issue of the qualifying museums. The hon. Member for Westbury said that amendment No. 28 was perhaps a test of grammar; he believes that it would correct a perceived technical flaw in the Bill. However, the problem is that the amendment would limit the clause's flexibility. As drafted, the clause covers any purpose of a qualifying museum, rather than promoting any particular purpose. We do not feel that the amendment is required.

Amendment No. 83 would bring qualifying museums within the licensing regime in respect of post mortems, anatomical examination and the removal of material from the body of a deceased person for use for a scheduled purpose. As members of the Committee know, we all agreed on Second Reading that the Bill was a response to the distress of people whose deceased relatives had had their organs retained for research without the families' consent. At the same time, it is also an attempt to create a framework to support research and development in science and medicine.

Museums have substantial holdings of human remains of historical or archaeological interest, so they deserve special consideration in the Bill. The treatment of human remains held by qualifying museums is not different in ethical terms from that in other sectors that

might be affected. Although museums do have substantial holdings of human remains—in a survey commissioned by the Department for Culture, Media and Sport in 2002, museums in England alone were found to have more than 61,000 remains in their care—the vast majority of those remains date from before 1900. Many are a great deal older than that: there are archaeological remains ranging across thousands of years, including Egyptian mummies, Lindow man—the body of a prehistoric human found in Cheshire which had been preserved in a bog—items, such as pipes, made from human bones, and reliquaries.

The treatment and use of human remains in museums is the subject of a report by the working group on human remains, which was set up by the DCMS in May 2001 but published its findings only in November 2003. Following on from that report, we plan to launch, in the next few weeks, a consultation on the treatment and use of human remains in museums. The consultation will specifically address whether, and in what manner, museums should be brought within the remit of the Human Tissue Authority and the licensing regime, which we could do after the consultation by using the order and regulation-making powers in clauses 11(4) and 13(5).

Assuming that the Bill is passed, we would be able to use its powers to bring museums within the remit of the Human Tissue Authority and the licensing regime. However, we would do that only in a way that is sensitive and appropriate to the needs of the museum sector, working in the context of a Bill that is aimed mainly at modern or recent remains that have been obtained in a medical or clinical setting.

We are undertaking the consultation exercise to assess the manner in which the licensing regime should apply to qualifying museums. The consultation will also address the financial impact on the museums sector of bringing it within the licensing regime. Although we are confident that a museum such as the Natural History museum could afford to be under the licensing regime, we need to establish the impact that the change might have on smaller institutions.

One example of such an institution would be the Old Operating Theatre museum in Borough high street, London. It has only a small number of staff and limited facilities, but houses the only surviving Victorian operating theatre, which it makes available to the public. The Committee will understand that we want to make a proper assessment of how such museums would be affected by the licensing regime. I understand the points that have been raised, but that is how we are planning to act and, as Members will know, the Bill contains powers to make that possible.

I turn to the detail of amendment No. 83. As the hon. Member for Westbury said, it is designed to prevent the scenario suggested on Second Reading in which Professor von Hagens or someone like him collaborated with a qualifying museum in putting on exhibitions or demonstrations and thereby avoided regulation.

First, that scenario is unlikely. Professor von Hagens operates a commercial enterprise and makes a profit by charging for access to his exhibitions. To escape regulation, he would need to become a qualifying museum. He would be required to maintain a permanent collection that was open to the public and to become a not-for-profit enterprise. It would not be sufficient for him merely to make use of rooms in the grounds of a qualifying museum. Even if he performed a public autopsy in such grounds free of charge, he would still fall under regulation unless he could establish that he maintained a permanent collection available to the public on a non-commercial basis. We certainly do not think that Professor von Hagens would willingly give up all his profits, particularly in the light of the very expensive process of plastination.

Secondly, the amendments do not cover the full scope of von Hagens' activities. They cover the performance of a public autopsy in a qualifying museum, but leave open the possible display of plastinated corpses—which is von Hagens' main activity and source of income—particularly if performed in a qualifying museum.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 10:00 am, 3rd February 2004

I might have misunderstood. Just for clarification, is the Minister saying that, hypothetically, Professor von Hagens would not be able to find a qualifying museum in this country in which to mount one of his displays or to carry out some of the activities that he carried out a couple of years ago? Is she saying that he would have to have his own museum set up legally as a separate entity?

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

It would not be sufficient for Professor von Hagens simply to make use of the rooms in a museum. He would have to have a permanent collection that was open to the public, and that itself would have to be licensed.

I reassure the Committee that even if museums are not brought under the licensing regime—as I have said, we are consulting on the issue; we want to be quite clear about the implications for the qualifying museums—if a qualifying museum were somehow to stage such an exhibition, the Government would certainly use the powers under subsection(4) to bring the exhibition within the licensing regime. We see that as the way forward.

My hon. Friend the Member for Leyton and Wanstead talked about the source of bodies and unclaimed bodies going to the anatomy department as in Russia. It is quite clear that, because of the strict consent required—in writing, witnessed, and so on—the Bill makes it impossible for that to happen in this country. In addition, the Human Tissue Authority will establish conditions on import and public display so that we can make sure that appropriate consents have been given.

We have to recognise, as I said in earlier debates, that there may be different ways of consent being given in different countries and that we cannot necessarily apply exactly the same standards, but because of the regulation of imports, the Human Tissue Authority would want to see some evidence of consent. I also reassure my hon. Friend that we are not talking about

banning public display. We want matters to be appropriately regulated, and for the consent for public display to be clear and explicit.

I turn to the question of art. The Human Tissue Authority will regulate the display of human tissue and license it in certain circumstances, but the Government are not seeking to determine what is or is not art. We do not envisage that being in the remit of the Human Tissue Authority.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

Will the Minister respond to the question I asked? How does she see the Human Tissue Authority acting on the question of public displays? I hope that, assuming the appropriate consent and that all the licensing requirements are met, she envisages no problem with a display, including that of a publicly visible autopsy that adults in this country can see. The Government were quite negative about the matter at the time, perhaps for reasons to do with consent.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

The hon. Gentleman has hit the nail on the head. The issue was about consent. We have taken the opportunity of this Bill to make it very clear that we require high levels of consent—in writing, witnessed, and so on—that somebody wishes their body to be used for such purposes. However, as I have said, we are not seeking to ban such practice; we are simply seeking to ensure that it is properly regulated and licensed.

Amendment No. 106 would remove the ability of qualifying museums under clause 29(3)(b) to acquire human remains by purchase without committing a criminal offence other than by seeking designation from the Human Tissue Authority. We adopted the policy in that subsection because of the differences, which we have already discussed, between the museums sector and medical and scientific facilities, which are the main target of the Bill. Clause 29 is primarily aimed at prohibiting the trade in organs, but museums do not sell or buy organs. They have no purpose in doing so, and nor would they have the facilities even if they decided to do so. The intention of the Bill is to maintain the status quo and to enable qualifying museums to continue to acquire in connection with their publicly available collection policies in the certainty that they will not be committing a criminal offence by so doing. Although much of what museums would try to buy, such as Egyptian mummies, has been subject to the application of human skill, and so falls outside the restriction, museums are interested in the acquisition of other categories of human remains that are not widely available and which they may conceivably have to acquire by purchase. The Natural History museum in London, for example, might wish to acquire a ''bog man''.

Amendment No. 129 would delete subsection (3) of clause 33, thereby bringing museums into the remit of the inspectorate of anatomy and pathology. The issues and the reasons that we oppose the amendment are almost identical to those I set out in replying on amendment No. 83, so I will not go through them all again. I reiterate just that we will be launching a consultation in the next few weeks to address the issue

of whether museums should be brought within the licensing regime, and that because the working group on human remains produced its report only in November, we have not had time fully to consult the museums sector on the proposal. It would not be appropriate to bring the qualifying museums under the licensing regime immediately.

Although we certainly share the concern expressed by hon. Members that Professor von Hagens should not be allowed to exhibit or stage demonstrations unregulated, the order and regulation-making powers in the Bill give us the facility to bring Professor von Hagens into regulation and within the remit of the inspectorate of anatomy. That is a much more sensible and cautious way to proceed at this stage.

We think that this is a much more sensible and cautious way to proceed at this stage. I hope that with those reassurances, hon. Members will feel able to withdraw their amendments.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 10:15 am, 3rd February 2004

I am very grateful to the Minister for that comprehensive account. I am reassured because we seem to be singing from the same hymn sheet. The amendments may come to pass as a result of the consultation exercise that she told us about today, and I welcome that necessary exercise. It is a pity that it was not conducted before we drafted the Bill. I am also reassured by the Minister's assurance that she is prepared to use the powers granted to her under clause 11(4) in the event of someone like Professor von Hagens needing to be investigated and his activities needing to be restricted in some way. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.