Item 11 is next. The legislative consent motion on the Health and Care Bill is item 11 and I call on the Minister for health to move the motion. Eluned Morgan.

Motion NDM7982 Eluned Morgan

To propose that the Senedd, in accordance with Standing Order 29.6, agrees that provisions in the Health and Care Bill, in relation to commercial dealings in organs for transplantation: extra-territorial offences, in so far as they fall within the legislative competence of the Senedd, should be considered by the UK Parliament.

Motion moved.

Thank you, Presiding Officer. I move the motion, and I'm today recommending the Senedd consents to legislative consent motion No. 4 on the UK Health and Care Bill. This amendment is very specific in nature and relates to commercial dealings in organs for transplantation abroad—so-called organ tourism. Members will recall that consent has already been given for the other clauses in the Bill that fall within the legislative competence of the Senedd, therefore, this is not an opportunity to reopen any other areas that are already agreed, but is limited to the consideration of this specific amendment.

A clause was inserted into the Bill on 16 March by Lord Hunt to address the issue of organ tourism. This is a deplorable practice where people from developed countries travel abroad to secure organ transplants from desperate people, or in countries with dubious human rights records. Lord Hunt has quite rightly been concerned for some time about this practice, and wishes to see it outlawed in the United Kingdom.

Whilst the number of people travelling abroad to secure transplants in this way is thought to be low, particularly in Wales, I agree with Lord Hunt that we must do our bit to try to prevent this obnoxious trade in human suffering. People who receive transplants in these types of circumstances will require NHS care on return, which could be made more difficult because of the lack of information about the circumstances of the transplant. There is also an added risk that they could develop infections, with the need for follow-up care. This places additional burdens on the service. It is therefore in everybody's best interests that we prevent this type of practice and that it is ensured that people go through the proper processes.

The intention behind Lord Hunt's amendment to prevent these practices is something that I'm sure we would all support. However, as drafted, the amendment was felt to be too complex and unworkable in practice because it required proof that specific consent to the organ donation had been given by the donor or their immediate family. It also places other significant burdens on healthcare professionals and others. The UK Government therefore tabled an alternative amendment on 28 March, which was passed in the House of Commons on 30 March and was confirmed by the House of Lords on 5 April.

The purpose of this amendment that we are seeking the Senedd’s consent for today is to have the same impact as the original amendment but in a simpler way, by making it a crime for a citizen of the United Kingdom or somebody who is usually resident in Wales or England to commit extra-territorial offences with regard to human organs that are already an offence in terms of the trade in human organs for transplantation if that were to be done within the United Kingdom. This, to all intents and purposes, extends the current offences in section 32 of the Human Tissue Act 2004 to extra-territorial offences.

Transplantation, which is the major topic of the amendment, is devolved to the Senedd, and I’m sure that Members are very aware of this, bearing in mind our innovative legislation that meant that Wales was the first nation in the United Kingdom to introduce presumed consent for organ donation. Despite this, at this time, I’m content for the Secretary of State to legislate on behalf of Wales. The amendment put forward by the United Kingdom Government is sensible and deals with something that has caused a great deal of concern for some time. So, in my view, Wales doesn’t have to seek to legislate separately on this issue, particularly in the wake of the timely opportunities that are offered by this amendment to a Bill that already exists. So, I am content that the Senedd can give its consent to the amendment.

The Chair of the Health and Social Care Committee, Russell George.

Supplementary LCM No.4 was referred to the Health and Social Care Committee for scrutiny on 29 March, although the LCM itself was not laid until 5 April. As a committee, we agreed that the Senedd's consent is required for clause 181 because the provision relates to health. Because the LCM was laid during the recess, with a reporting deadline of just three weeks, we had very little opportunity, obviously, to scrutinise the provision or reach any conclusions as a committee. And I thank the Minister for meeting with me last week virtually. 

As the Minister has said, as a consequence of the amendment being made at a very late stage in Westminster, that is the reason why we're here to discuss this element today. Nevertheless, in our report on the LCM, published yesterday, we have reiterated our ongoing concerns about the increasing use of LCMs as a mechanism for legislating on devolved matters. Seeking the Senedd's agreement to the UK Parliament making laws on devolved matters on our behalf rather than legislating here in Wales limits of course the potential for the detailed and meaningful scrutiny of any implications arising. Therefore, the approach not only risks undermining the Senedd's role as a primary law-making body, it also increases the risk of unintended consequences arising. Diolch yn fawr, Llywydd. 

The Chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies. 

We have produced three reports covering the four consent memoranda that have been laid by the Minister on this Bill. Given that it was only at the beginning of the Easter recess that memorandum No. 4 was laid, our third report was laid just yesterday afternoon, immediately after we had considered the memorandum at our first meeting of the new term.

And I welcome the comments of my fellow Chair there on the issue of using this approach of LCMs for making legislation.

Llywydd, I'll state for the record that our latest report should be read in conjunction with our earlier reports, some of which touch on these very matters. In our latest report laid yesterday on memorandum No. 4, we have noted the position of the Minister with regard to the amendment made to the Bill, and we agree with the Minister’s assessment that the new clause relating to commercial dealings in organs for transplantation relates to a devolved purpose. We've also noted the position of the Minister with regard to her reasons for making further provision for Wales in the Bill.

During the previous debate we had on the earlier consent motion for this Bill, I drew attention to the fact that the Minister has accepted that there is a constitutional risk to pursuing and agreeing to provisions for Wales in this Bill. This constitutional risk relates to the provisions that would enable UK Ministers to use regulation-making powers in the Bill to amend the Government of Wales Act 2006. I asked the Minister to provide a fuller response to my committee as regards her assessment of this risk. We take this opportunity thank the Minister for her subsequent letter, in which she stated that the UK Government has specifically confirmed that it has no plan to use the powers that are consequential on the Bill to amend the 2006 Act, and that the Welsh Government accepts these commitments. But, it does bring us back to the issue of why, Minister, unlike in other situations with other Ministers, you've not sought an amendment to the Bill so that the powers cannot be used to amend the 2006 Act.

There remains this important point of principle that how one Government intends to use powers at any one time could be very, very different from how a future Government may use them in years to come. We raised this matter with the Counsel General, such are our concerns on this point of principle. We thank him for his response, and it's good to see him in the Chamber here today. For the benefit of all Senedd Members here this afternoon, the Counsel General told us that not obtaining concessions in other areas of this Bill represented a greater risk to Wales than the risk presented by the consequential amendments. The Counsel General also told us that whilst a consistent approach to similar clauses across UK Bills is aimed for, each Bill requires different issues to be balanced and negotiated. It is an argument, we grant that, but we would respectfully argue that on important matters such as the modification of our principal devolution statute, there needs to be a single, constant, consistent and firm line.

My committee will continue to pursue these matters with the Welsh Government in its entirety, but I look forward now to the Minister's response here today.

Thank you for the opportunity to respond. I just want to make it clear, as with the previous LCM, that we're not opposing the principle before us today; that's not what we're doing as Plaid Cymru in opposing these LCMs, but making a point once again that we can't ignore the fact that these motions are being made in the context of an increasing number of motions that undermine devolution, that cut corners in terms of our ability as a legislature to scrutinise. Plaid Cymru will always seek to protect and safeguard the integrity of this Senedd, and once again today, it is important that we make a statement through the vote today, even though it's clear which way the vote will go, to declare once again that we are not content time and time and time again to see our competence being undermined in such a throwaway manner by the UK Government.   

The Minister for health to reply to the debate.

Diolch yn fawr. I accept that what we're embarking on here is a constitutional risk; I've made that clear right throughout the discussion on the Health and Care Bill. I do think, however, in relation to many sections of the Bill that we've already discussed, that actually the UK Government has moved quite a long way in our direction and has made some very significant concessions in our direction. You do have to make a political judgement at some point. Are you going to pocket the concessions and move things on in our direction, or are you going to just stand firm and say, 'Actually, no, just don't step on our territory'? It is a political judgement, and it's very, very difficult. We have made a judgement that is slightly different. As you say, different aspects of Government are taking slightly different positions. If we were to go for a blanket approach, then actually sometimes we may lose out in terms of powers that are being granted to us, effectively—not so much granted to us, but things that would be helpful to us; things that we actually want to happen. So, we have just got to be, I think—. The way that we have approached this Bill, where we have actually managed to really gain a lot of concessions—. They have come a long way, after a lot of negotiations, in our direction. I think that it makes sense for us to hold our noses, I'm afraid, and accept that this is the position. So, I do hope that people will support the motion, and I thank, in particular, Members of the constitutional committee and health committee for their comments. Diolch yn fawr.

The proposal is to agree the motion. Does any Member object? [Objection.] Yes, there is an objection. I will therefore defer voting under this item.

Voting deferred until voting time.

We now move to items 12 and 13. In accordance with Standing Order 12.24, unless a Member objects, the two motions under items 12 and 13, the general principles and the financial resolution of the Welsh Tax Acts etc. (Power to Modify) Bill, will be grouped for debate with votes taken separately. Are there any objections to that? I don't see any objections.