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The Week in Parliament

Consultations in Parliament it turns out, are like buses, you go weeks without any and then a whole bunch of them turn up at once. Even more amazingly, only three of them related to the coronavirus crisis.

I particularly want to look at the debate on the new Draft Human Tissue (Permitted Material: Exceptions) (England) Regulations 2020, as it seems to have been a rare example of the government receiving cross-party praise for a consultation process. The regulations stem from  the Organ Donation (Deemed Consent) Act 2019, passed last year to amend the Human Tissue Act and implement the new “deemed consent” system, whereby all adults in the UK will be considered organ donors, unless they are excluded or choose to opt out. The regulations under debate this week bring into force the “deemed consent” provisions as of 20th May. As we would expect, the entire legislative process has been done under heavy consultation, with three separate public consultations since being introduced in July 2017.

One of these consultations ran between 29th April 2019 and 22nd July 2019 (sadly before I joined the institute, so I cannot point you in the direction of anything we wrote at the time- though we did comment on the original “deemed consent” consultation in 2018). The 2019 consultation called for public views on which organs and tissues should be excluded from the opt-out system. It was a relatively standard public-facing medical consultation (rather than being one for clinicians), covering the clarity of the regulations, and the exclusion of tissues under certain circumstances.

The consultation received over 3,200 responses, primarily from individuals, some of which were from people who had responded to the original consultation as part of the government’s ongoing engagement with stakeholders. I will not go into the detail of the specific responses or the Government analysis thereof, save to say that it highlighted certain issues with the original proposed regulations, notably that there had not been enough explanation of “novel transplants” (those that are not commonplace, and are usually in an experimental or theoretical phase) and why they had been excluded from the “deemed consent” provisions, that the list of excluded organs should be extended to achieve more parity between the male and female reproductive system (which had both been included, but at disparate levels of specificity), and that there was a need for more clarity regarding the mechanisms for the transplant of the cornea, which require the removal, but not the transplant, of the entire eye.

Following the consultation, the government regulations were heavily amended to make changes in line with the responses to the consultation. The Government response to the consultation included a copy of the new regulations, with the changes highlighted. In the House of Commons debate on the new regulations, which took place on Tuesday, Alex Norris, the Labour and Co-op MP for Nottingham North, commented on how good it was to see a consultation resulting in such concrete changes.

Two of the Institute’s key principles has always been that genuine consultation will result in better decision-making, and that clarity in the process of reaching a decision is critical both in establishing trust in the system, and in making sure that policy changes work for the public. This case seems to have been a particularly fine example of the Government using public responses to a consultation to inform and improve upon proposals, to ensure that they make positive changes with broad buy-in.

The Scottish Parliament’s consultation debates this week has primarily focussed on the Civil Partnership (Scotland) Bill, currently going through its first stage in the Scottish Parliament. The Bill would introduce mixed-sex civil partnerships, and follows on from a consultation in 2018 that discussed two potential options for changes to the law of civil partnership, the idea of closing civil partnerships to new couples at a specified point in the future, or, the option that became the subject of this Bill. Although there was little criticism of the original consultation, the debate did highlight the need for further consultations on detailed provisions, particularly the potential for marriages to become civil partnerships, and the disparities between recognition of marriages and civil partnerships across the other constituent nations of the UK. With multiple consultations on this ongoing across the UK, it will prove an interesting one to watch, especially if the results of consultations end up creating differing regimes.

In the Welsh Parliament, consultation talk has revolved around the lifting of lockdown. Paul Davies, the Welsh Conservative leader, criticised the Welsh Government’s lockdown strategy as not being so much an actual roadmap for the lifting of restrictions, as a list of consultation phases that they plan to undertake. As we suggested in our briefing paper, this may not entirely be a bad thing, if we assume it to be true. The lifting of the lockdown, we suggested, must be undertaken in a highly consultative manner, for reasons we discussed at some length.

As always, if you have any questions, or if there is anything you would like to discuss further, please do drop me a line at StephenH@consultationinstitute.org

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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