Hart insists Wales plan for organ opt-out system lawful

organ bag Ministers want law-making powers over organ donation to be devolved to the assembly

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The health minister has defended her plan for an opt-out system for organ donation in Wales despite fundemantal concerns by the attorney general.

Edwina Hart said she received a last-minute email expressing UK government concerns over whether the plan was compatible with the Human Rights Act.

Mrs Hart told AMs she had clear legal advice that the move was lawful.

Welsh Secretary Cheryl Gillan said it was "routine" to consult the attorney general on all proposed powers.

The assembly government has called for the law-making powers over organ donation to be devolved.

The assembly government wants to bring in a soft opt-out system whereby people in Wales would need to indicate that they do not want their organs given for transplant when they die.

Supporters say it would help make more organs available for patients who need transplants.

Mrs Hart has submitted a request for the assembly to have powers - called a legislative competence order (LCO) - over organ donation.

In a Senedd statement, she said she had not yet received confirmation from the attorney general that the proposed order was lawful.

She said an LCO would not normally be introduced before confirmation that the UK government was content with it.

Start Quote

Cheryl Gillan MP

This LCO is being handled in exactly the same way as all other legislative bids from the assembly and assembly government”

End Quote Cheryl Gillan MP Welsh Secretary

"However, if we were to wait for that confirmation, there would be no proper opportunity for assembly members to scrutinise the order," she said.

She told AMs she received an email from the Wales Office raising concerns about the LCO at about 1415 GMT on Wednesday, just before she was about to deliver a statement.

Objections include whether the LCO is outside a devolved field and the practicalities of having a different system in Wales for organ donation to that in England.

But Mrs Hart said the assembly government's view was that the order was lawful "and we would intend to proceed with it".

An assembly government source told BBC Wales the email containing Attorney General Dominic Grieve's objections was sent from the Wales Office only 14 minutes before Mrs Hart was due to give her statement.

It is believed the first minister himself had to bring a printout of the email from the government offices in Ty Hywel down to the chamber in the Senedd, so the health minister could quickly update what she was due to tell AMs.

But a Wales Office source says the First Minister was alerted to potential legal issues with the LCO in a meeting with Welsh Secretary Cheryl Gillan on Monday afternoon and that claims of Westminster blocking tactics were "rubbish".

Mrs Gillan said in a statement the LCO was being handled "in exactly the same way" as all other legislative bids from the assembly government and she had "worked closely" with ministers in Cardiff Bay, including talks on Monday.

"It is routine for the government to seek the view of the attorney general on all LCOs, and to obtain government agreement for LCOs to be submitted for pre-legislative scrutiny."

She said they had reached this stage against a "very tight timetable" and it was now going for detailed scrutiny.

"Given the importance of this legislation I am determined to ensure this is done in a rational, sensitive fashion and that we do not cut corners," she said.

Plaid Cymru AM Dai Lloyd said people would still be able to stop their organs being made available for transplants under the proposed opt-out system.

"If you really don't want to donate your organs, then just say no," he said.

"There appears to be, on the face of it, an attempt, through the LCO process to stop the Welsh Assembly Government doing what it wants to do."

Conservative health spokesman Nick Ramsay said: "We welcome this bid to seek the powers to address the shortage of organs for transplant, which is denying hope to many patients across Wales.

"Given the serious issues of conscience and the complex legal questions surrounding these proposals, we must ensure that sufficient time is allowed for detailed scrutiny of the implications and a thorough examination of how an opt-out scheme could work."

Kidney Wales Foundation chairman Roy J Thomas said: "Support for a system of opt out is overwhelming in Wales. We have the powers. We are confident of this."

He said that "sending emails late in the day on matters of such importance is a major concern".

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