Question over Legal Rights to Change Organ Donation Laws; WELSH GOVERNMENT MAY NOT HAVE POWERS, CLAIMS EXPERT

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Byline: MARTIN SHIPTON

ONE of Britain's leading constitutional experts has raised serious questions about whether the Welsh Government has the legal power to change the system of organ donation in Wales. Earlier this week a White Paper was published in which the Government set out its plan that could see everyone become a potential organ donor unless they specifically opted out. Currently people have to opt in.

Campaigners for the change argue it would greatly improve the life chances of patients with failing organs. But doubts about the morality of a system under which the state would exercise its right to remove organs without positive approval have been expressed by the Archbishop of Wales and others. Now constitutional expert Alan Trench, of Edinburgh University, has suggested that the move could in any event be beyond the Government's powers.

Writing on his blog, Devolution Matters, Mr Trench said: "The Government's White Paper is problematic, for a number of legal and policy reasons, quite apart from the moral issues involved.

"There are potential issues of compliance with the European Convention on Human Rights, particularly Article 9 (Freedom of thought, conscience and religion).

"However, similar 'soft opt-out' schemes operate in many other European countries, so these problems are not insuperable but depend on exactly how the scheme safeguards the interests of those who object to organ donation."

Mr Trench goes on to describe three problems relating to the proposal that he says aren't even hinted at in the White Paper.

Firstly, he writes: "It's not clear that this is within the Assembly's legislative competence.

Subject 9 in Schedule 7 to the Government of Wales Act 2006 gives the Assembly competence to legislate on 'health and health services', meaning among other things 'prevention, treatment and alleviation of disease, illness, injury, disability and mental disorder. ... Provision of health services, including medical, dental, ophthalmic, pharmaceutical and ancillary services and facilities'. "The Welsh Government has consistently asserted that this matter is within the Assembly's legislative competence, but it has not explained its reasoning for this. …