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Lords Chamber

Volume 696: debated on Tuesday 4 December 2007

House of Lords

Tuesday, 4 December 2007.

The House met at half-past two: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Newcastle.

Higher Education: Adult Students

asked Her Majesty’s Government:

Whether they will increase the amount of support and encouragement for adults to pursue part-time higher education.

My Lords, in 2006-07, we introduced in England the most generous package of financial support that has ever been offered to part-time students undertaking courses. It included increasing the maximum fee grant by 27 per cent and an above-inflation increase in the income threshold for receiving this support. The number of England-domiciled part-time students receiving grants for fees rose from 34,700 to 42,000 between 2005-06 and 2006-07, which is an increase of 21 per cent. Devolved Administrations are responsible for supporting their own students.

My Lords, I thank the Minister for that reassuring response, which omitted any question of “but”; namely, that the consultation period on the Secretary of State’s September letter ends this coming Friday. The Minister will recall that, in the vigorous debate last night, there was nigh unanimous support throughout the House for the Government to take a different stand from that proposed by the Secretary of State. How does he propose to respond to the representations made on behalf of Birkbeck, the OU and many other providers, which are protesting about the proposals in the Secretary of State’s 7 September letter?

My Lords, the support would have been unanimous last night had I not defended the Government’s position, but I was proud and privileged to do that. The consultation is taking place. As I said last night, I am determined that it should be serious. I am determined that the points made in the debate in your Lordships’ House last night should feed in even in these last few days of the consultation. Some substantive issues were raised and I said that they should be considered properly. I cannot give undertakings about the outcome of the consultation, but I hope that I indicated then, as I do again now, that serious points were made that are well worth considering, and I shall ensure that they are.

My Lords, does the Minister agree that it is a happy situation that innovative means of progress in education, both part-time adult education and other education, are possible in this country, whereas they are not possible with safety in other parts of the world? I am sure that we would all like to congratulate our colleagues on their success in bringing back the teacher from Sudan.

My Lords, I could hardly endorse that thought more. It is not so long since I was Minister for Africa and I have watched these events with the same levels of anxiety as all noble Lords will have experienced. I am delighted that she is back. I hope that this may provide some sort of platform for getting a better understanding. It would be a great disappointment if teachers from the United Kingdom did not teach in other parts of the world. People responsible for the countries in those parts of the world should welcome the teachers whom we send, as they contribute enormously.

My Lords, my noble friend will know that in relation to part-time higher education we on these Benches take a particular pride in the Open University, one of the great achievements of any Labour Government, comparable to the National Health Service. I think that my noble friend will acknowledge that the proposed policy on ELQs will cause problems for the Open University, so may I ask him in the most comradely way—contrary to last night—what proposals the Government have in mitigation?

My Lords, first, I hope that the House will look with caution at all figures produced about the likely consequences for the Open University. None the less, there is no doubt in my mind that there are consequences for a very great institution. In those circumstances, we need to work carefully with the Open University on a sustainable business model. It is an extremely innovative institution and I have no doubt that it can do a number of things to mitigate the circumstances to great effect. One thing that I am sure of is that we would not want to damage the stability or quality of the provision of the Open University, which I know has been enjoyed at first hand by a good many Members of this House.

My Lords, how on earth did it come about that the Government had this idea that was so clearly damaging to the Open University, which, as the Minister said, the Government and the whole nation value? How did it come about that anything so unwise could be promulgated?

My Lords, I do not wholly accept the notion that the policy has been unwise. To be clear, I should say that the aim is to increase the amount of money available to those who have never yet been to university or undertaken a first degree at all. Because there is a finite amount of money and it is not possible to extend it indefinitely, the choice was made to move priority from those who were going to study for a second first degree, or something equivalent, to those who had never studied for one at all. That is a decent policy objective, which in many universities will be thought to be appropriate.

My Lords, sadly, I could not be here last night, but I have read the very interesting debate. I declare an interest as an enthusiast for the Open University. I should very much like to have an answer to the point made by the noble Lord, Lord Rix, who asked how many women would be disadvantaged by this, given that the vast majority of them are coming back into education and need to upskill. He also wanted to know how many part-timers are women. This policy seems to run totally counter to every other effort on the part of the Government, who have been superb in pursuing equal opportunities for women.

My Lords, 57 per cent of the ELQ students are women. As it happens, that is exactly the same proportion as women constitute in the non-ELQ student group. There is exact parity. About 10 million women in the workforce do not have a first higher-level qualification and they are among those whom we have sought to prioritise by this policy move. I hope that it will be accepted that the aim has been to ensure that women with no first qualification of that kind get a realistic prospect of obtaining one.

People Trafficking: Council of Europe Convention

asked Her Majesty’s Government:

What is their target date for the ratification of the Council of Europe convention on human trafficking; and what progress has been made on their action plan.

My Lords, perhaps I should explain and share my disappointment with the House that my noble friend Lord West is not able to answer this Question this afternoon. Unfortunately, he has been detained due to a fatality on a train in front of his own while returning to London from a ministerial visit.

We will ratify the convention as soon as we can as part of our wider strategy to combat this horrific crime. That will take time because of our legal system. Unlike in some countries, there must be full compliance with the convention before ratification. We continue to make progress on all areas outlined in our action plan, most notably in relation to enforcement issues, which has helped to secure 67 convictions to date.

My Lords, I am very grateful to my noble friend for standing in at such short notice and I thank him for his reply. Will he convey to his colleagues that, with the best will in the world, that reply does not add much to what we were assured of during the passage of the UK Borders Bill through the House last summer. Of course, it is essential—the Government are to be commended on wanting—to insist that we have everything in place to make meaningful success of ratification. I applaud that totally, but the process of getting that action plan together is being seen by some as a substitute for getting on with the job and actually implementing the convention. Could we not set a time limit for completion of work on the action plan?

My Lords, I fully concede that my noble friend makes a fair and reasonable point and my ministerial colleagues and I share his frustration about progress on this issue. However, it is right that we put all the measures in place. I would not like to see us in a position where we were criticised for failing to conduct ourselves entirely properly. The Government have been vigorous in ensuring that the right measures are adopted as part of their overall action plan. I know that many noble Lords have congratulated the Government on our support for the Poppy Project and Pentameter 2 and on our rigorous activity in terms of enforcement. We are making progress in those areas.

My Lords, the Minister will no doubt confirm, as he said in a letter to those of us who took part in the debate initiated by the noble Lord, Lord Sheikh, that a progress report will be published in March. Will that clearly identify those elements of the action plan which have to be completed in order to enable us to ratify the treaty? With regard to the submission of the implementation plan to the interdepartmental ministerial group scheduled for July, could that not be brought forward to March so that it could be published and discussed at the same time as the progress report?

My Lords, I understand that the interdepartmental ministerial group meets on a quarterly basis. The next meeting is in January when there will be a review of progress on the moves towards ratification. The benefit of that process is that it is transparent. I also understand that reports are received by the Joint Committee on Human Rights as part of the read-out from the interdepartmental ministerial group.

My Lords, I declare an interest as a member of a committee examining human trafficking. Do the Government have a clear policy on dealing with missing children? Many of those who come to this country—several thousand in the past five years—are missing and I am not certain whether there is a clear policy yet from the Government about how to deal with that.

My Lords, I assure the noble and learned Baroness that we have a clear policy in place and I am more than happy to share with her the outline of that strategy. Perhaps I may conduct some correspondence with her which will provide a more thoughtful response that I can give this afternoon.

My Lords, my understanding is that this treaty cannot be ratified until some areas of the convention have been amended. What is the timescale for amending those areas of the convention in both primary and secondary legislation and for bringing the proposals to Parliament so that the Government are in a position to ratify the treaty, which I do not think they are at the moment?

My Lords, the noble Baroness makes a good point. We understand that we will have to bring forward legislation to ensure that we can properly comply with and ratify the treaty and slots will be identified for that. The legislation will cover such areas as access to benefits and identification of the person involved. Those issues need to be defined in legislation and they will be part of our legislative timetable.

My Lords, while we have had many Questions on this issue, the same answer is given time after time, both to my colleagues in the other place and here. We are told that the Government will be doing this soon. Will it be in two weeks, two months or two years? As the noble and learned Baroness, Lady Butler-Sloss, knows, at the same time children are being brought to this country and are being trafficked into other countries. The same applies to women, men and families. We have to take a stand. We are one of the main countries in the EU and we should be taking a lead there and in the Council of Europe. We are not taking a lead and we should be. Will the Minister please tell us when we are going to ratify the convention so that we can take a lead on this matter?

My Lords, I entirely understand the noble Baroness’s frustration. It is not possible for me to give a specific timetable. I have identified some of the key points. Despite the concern about timetables we should all remember that the most important things are enforcement activity, ensuring that we put the services in place for those who require our protection and that our staff and colleagues are fully trained. It is most important that all those things take place. Operations such as Pentameter are undoubtedly leaders in their field and are recognised as such across Europe.

Housing: Planning Permission

asked Her Majesty’s Government:

How many councils in England are subject to a moratorium or severe restrictions on granting planning permission for new housing.

My Lords, no councils are subject to centrally imposed moratoria—by that, I mean centrally imposed blanket bans—or severe restrictions. Her Majesty’s Government are not aware of any areas where there is a locally set moratorium. Some councils have introduced local policies that seek to restrict development within their areas in particular circumstances.

My Lords, I thank the Minister for that reply, which is the same reply we have had to several of these Questions over the past year or two. Such replies meet with astonishment from local authority officers, councillors and, indeed, developers and local people in these local authorities and district councils, of which there is a string across the north of England—for example, Chesterfield. I spoke this afternoon to my honourable friend Paul Holmes, the MP for Chesterfield. There are moratoriums and local restrictions on giving any more planning permission in these areas—not on greenfield sites but on brownfield sites which can contribute to regeneration. Will the Government find out the facts about these places and hold discussions? If they do not want these moratoriums and want these councils to contribute to the 3 million houses that the Government want, will they let them do so? I should declare an interest as a member of such a council.

My Lords, I thank the noble Lord for raising this Question and giving me the opportunity to put on record something which I think will be helpful and may ameliorate some of the local authority astonishment that he described. I believe that there has been a misunderstanding on the part of some local authorities regarding what we are saying about the targets that are set in regional spatial strategies.

The Government have made it clear that we do not expect RSS targets to be ceilings. Taking this alongside planning policy statement 3 on housing, which was published last year, local authorities such as Pendle are now free to adopt a much more flexible approach to housing provision. For example, regional housing strategies are being reviewed, and we hope to publish the one for the north-west next year. If local authorities are not happy with their allocation of 190, for example, in Pendle, they can build more. They can make those decisions taking into account the need for sustainability and with regard to the need for pathfinder regeneration in the region as a whole.

My Lords, is the Minister aware that a much greater threat to many parts of the countryside is what are known as Travellers? Do the Government have the same degree of authority in getting some sort of Ordnung on the way in which those people behave? The local people dare not.

My Lords, I am aware that some people have concerns about the experience of living close to Traveller communities. That is a long-standing concern, and the Government will be looking at that through the Housing and Regeneration Bill, which has already been debated in the other place. We will have a chance later in the Session to have a serious debate about these issues.

My Lords, is not the Government’s top-down approach the problem, not the solution? Of course we want rules to protect our green belt, and I wish I were confident that the Government did too. Should not local councils and local people decide where new housing goes? Why is unwanted development still being imposed by government inspectors in gardens in our lovely suburbs while brown land owned by the Government lies derelict?

My Lords, I do not accept that interpretation of the planning system in this country. We have worked very hard to develop new approaches to planning that are plan-led. They are based on a bottom-up approach as well as national policy frameworks. We need local planning frameworks to be based on evidence from local communities to set aside, in a planned way, five years of available land. Yes, 60 per cent of that land for development needs to come from brownfield sites, but local authorities can ensure that as a local policy they exclude gardens from the brownfield allocation. I do not accept that we are looking at a top-down planning approach. The Government have ambitious targets to tackle the lack of affordable housing in this country and to ensure that we see 3 million new homes by 2020.

My Lords, with the greatest respect, thanking the noble Baroness for her Answer, is she aware that answering—which is not her fault—these excessively long questions totally destroys the essence of what is supposed to be Question Time?

My Lords, I appreciate that it is to the advantage of the House to have as many questions answered as possible, but where there are serious misunderstandings about government policy, as we have seen with regard to regional spatial strategies, speaking on behalf of the Government I should have a chance to put important points on the record.

My Lords, I think that the Government have overturned policy in one fell swoop in this announcement; perhaps not. Will the Minister make sure that her Government Office officials in the English regions and her planning inspectors are aware of what she has just announced? They are overturning local authority planning decisions on precisely the grounds that I have been talking about.

My Lords, I assure the noble Lord that all appropriate offices and officers are properly informed of the Government’s approach to RSS targets. He is highlighting the fact that government policy is moving on in a very important way. We need to make the planning system free up land so that we can see new houses for all those who are suffering because of a lack of affordability and a lack of access to decent homes in a place where they want to live.

Commonwealth Heads of Government Meeting: 23-25 November 2007

asked Her Majesty’s Government:

Whether they will outline the main achievements of the Commonwealth Heads of Government Meeting held in Kampala from 23 to 25 November.

My Lords, noble Lords will be pleased to hear that the Commonwealth Heads of Government Meeting achieved a strong statement on climate change and significant commitments on improving education, trade, reform of international institutions, the MDGs, and on tackling the causes of radicalisation. A new secretary-general, Kamalesh Sharma, was elected; guidelines on Commonwealth membership were adopted; and CMAG, the Commonwealth committee, demonstrated the organisation’s adherence to its democratic principles by suspending Pakistan from the Councils of the Commonwealth, while keeping channels of communication open.

My Lords, I welcome very much the progress that has been made. However, does the Minister agree that it is difficult to make progress on important issues such as development, aid and trade unless it is accompanied by a strengthening of good governance and the rule of law throughout the Commonwealth? In view of the Commonwealth’s robust line on Pakistan, in marked contrast to the lack of a message on Zimbabwe, will the Minister say whether there was a sense of renewed commitment to democracy in the Commonwealth?

My Lords, the whole Commonwealth membership was united, when it came to Pakistan, in standing by its democratic principles and the need to demonstrate that there were not double standards. Zimbabwe, by contrast, is a country that chose to leave the Commonwealth when threatened with suspension. It is therefore no longer a subject for discussion in the Commonwealth, which limits itself to discussion of its membership.

My Lords, the Minister mentioned new guidelines for membership. He also said that Zimbabwe left the Commonwealth. Is it not the case that in the Harare decision it was agreed that, on the model of how South Africa was treated, the fact that Mugabe left the Commonwealth did not mean that Zimbabwe did? Was that discussed, and is that what the Minister means by reviewing the laws of membership?

My Lords, the discussion of the laws of membership relates to the significant numbers of countries that wish, as the noble Baroness is no doubt aware, to join the Commonwealth. I think that that is a full indication of the Commonwealth’s current good health. Zimbabwe is currently demonstrating no such interest but I have no doubt that, were there a change of leadership in Zimbabwe and were it to come back to the Commonwealth, it would qualify as a democratic entrant under the rules which were adopted.

My Lords, I found the Commonwealth communiqué rather long on aspirations and short on recommendations for concrete action, in particular on climate change, which the Minister mentioned. The so-called Victoria action plan, which he agreed, did not contain any proposals that would alter the individual policies of member states. On the work of the Commonwealth Working Group on Asset Repatriation, why did CHOGM not agree to the recommendation that there should be progress reports on that work and better resources in the Commonwealth Secretariat to assist member states to implement it?

My Lords, the noble Lord is too much of a veteran of these things to be entirely surprised that a communiqué of this kind ran long on aspiration. On climate change, I should point out that the summit took place just 10 days before the Bali conference opened this week and the objective was therefore to try to get strong language on the challenge of climate change from a grouping of all kinds of different countries. We felt, in that sense, that it was an effective way of teeing up Bali—by showing that a strong common position had been taken by countries as diverse as ourselves and other industrialised countries, but comprising also a large industrialising country such as India as well as small countries, island states and African countries which will be most hit by climate change. We thought it would put energy into Bali. On the noble Lord’s other point on asset recovery, I will need to come back to him.

My Lords, does my noble friend agree that, hidden away in this rather long communiqué, there was a very important commitment to the exchange of youth within the Commonwealth, and to the contribution that can be made to understanding and reconciliation between different communities by communities getting together in partnership throughout the Commonwealth? We are aware that the British Government favour that in principle. Can my noble friend tell us a little about the practical support that will be given for the furtherance of this objective?

My Lords, I think that my noble friend is aware that this theme of community reconciliation ran strongly through the discussions both at Foreign Minister level and subsequently at the Commonwealth Heads of Government Meeting, where Professor Amartya Sen presented a report over lunch to Commonwealth members. In the aftermath, we need to look at how we can promote advancement on these issues of reconciliation. However, I say in general to all those in this House who support the Commonwealth that this meeting, with its focus on these kinds of issues of reconciliation, as well as on issues of climate change, despite our diverse climactic and economic interests, represents a renewal of the Commonwealth’s energy and ability to bring us together.

My Lords, I am very glad to hear the Minister talk about renewal of the Commonwealth. Does he accept that we on this side greatly welcome the appointment of Kamalesh Sharma as the new secretary-general? Obviously, we recognise that Don McKinnon did an excellent job, but clearly the Commonwealth is moving into an entirely new situation in which its potential will be very great. Does he accept that that potential is often best expressed not so much at government level but at non-government level and at the level of the huge network of about 250 different associations that spreads across the Commonwealth and keeps links between people? Will he welcome, and possibly say a word more about, the announcement from Kampala that the Commonwealth was thinking of extending not just its membership where it can but its links and associations with other countries? I refer not necessarily to English-speaking countries or those connected with the old British Commonwealth but to countries which share the values of the Commonwealth and are anxious to work with it across the future global pattern.

My Lords, I thank the noble Lord for all that he said, including his remarks about Kamalesh Sharma, which we on this side share entirely. Going to a Commonwealth summit is a little like going to the Edinburgh Festival, where the fringe is in some ways as exciting as the festival proper. It is remarkable to see the richness of the Commonwealth associations to which the noble Lord refers—for business, culture and different development activities—and to see the energy of the people involved in those activities and their desire to bring them to the attention of the government leaders there. In that spirit, I agree that an enlargement of the Commonwealth around shared values of democracy and openness and not necessarily just around shared language or historic links, offers the opportunity for a commonwealth of civil society to grow as strongly as a commonwealth of governments.


My Lords, with permission, we shall have a Statement this afternoon on the Nimrod board of inquiry report. It will be taken at a convenient time after 3.30 pm and will be delivered by my noble friend Lady Taylor of Bolton.

Child Maintenance and Other Payments Bill

Brought from the Commons; read a first time, and ordered to be printed.

Human Fertilisation and Embryology Bill [HL]

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

24: After Clause 10, insert the following new Clause—

“Infertility treatmentDuty to commission in vitro fertilisation service

After section 10 of the 1990 Act (licensing procedure) insert—

“Infertility treatment10A Duty to commission in vitro fertilisation service

(1) Each specialist service commissioner must commission a service for in vitro fertilisation in respect of the population for which they commission services.

(2) An annual report on the performance and outcomes of each in vitro fertilisation service must be made to the relevant strategic health authority by the commissioner.

(3) The report made under subsection (2) must be published.””

The noble Baroness said: This amendment, which is in my name and that of the noble Baroness, Lady Jay of Paddington, affects services for in vitro fertilisation as supplied within the NHS.

At present, one in six couples seeks an infertility specialist. Their infertility is a cause of enormous stress and no one should underestimate the extent to which couples who consider and go through IVF find that their lives are completely taken over by the process. NICE has produced guidance to commissioners on how services should be commissioned. It recommends three cycles of stimulated IVF for women between the ages of 23 and 39 who have either a proven cause of infertility or have been infertile for three years or more.

How are we doing in the UK? Sadly, not very well. In 1999, 1.4 per cent of births were by assisted reproduction whereas in other parts of Europe, on average the numbers were much higher, and in some parts of Europe they were 3.7 times our figures. And what do we know? A letter from Dawn Primarolo, as Minister, to primary care trusts in July this year, outlined the response to the Infertility Network UK survey, which is part of a project to reduce inequalities in provision of IVF services. In that letter, the Minister outlined the fact that fewer than half of the PCTs responding said that they funded the transfer of frozen embryos created in the course of an IVF cycle; that these embryos are not stored, despite the NICE guidance, in the states that they should be stored in and used before the next stimulated treatment cycle; and that many PCTs have not achieved the full implementation of the NICE recommendation, which I have already outlined.

So what happens? Couples desperate for treatment go privately. Under enormous financial pressure, they choose to have more than one embryo implanted, hoping that they will get their two babies in one go. But that is not without its risks and the problem, too, is that the risks and the costs of those risks then fall to the NHS, so it is actually a false economy for the NHS. The problems are that there is a sevenfold to tenfold increase in the risk of neonatal damage with multiple pregnancies, and, to the mother, there is an increased risk of bleeding, all the problems associated with caesarean sections, hypertension during pregnancy, diabetes and all that goes with that. Currently in the UK, about a quarter of births through IVF are multiple births, which is a very high figure. In countries such as Sweden, where they have a health service-related service and only implant one embryo at a time, they have a much better rate, with lower complications, through IVF. Because they implant one embryo, they create a single pregnancy and the women are able to go back later for another pregnancy—or, if that fails, they can go back for another attempt at implantation.

It has been said that some women make a financial commitment, which demonstrates their commitment to parenthood. I say “women”, but this involves couples although it is the woman who undergoes the ovarian stimulation and treatments. Infertility is a disorder. Couples go because they are absolutely desperate, put themselves through very tough financial stringencies and end up making these poor decisions to try to get their babies in one go. There are terrible postcode variations around the country. There are some examples of good practice. I heard, just before coming into the House today, that in Cheshire there is a link between the PCT and the Liverpool service which includes quality markers within the commissioning contracts, as well as several other markers. There are good practices around the country, but unfortunately they are not ubiquitous.

Those people who may make excellent parents end up being excluded because of finance—just because they cannot afford the prices. It is also worth remembering that the tragedies that occur from multiple implantations happen right across the board, right across the economic spectrum. People who put themselves through enormous financial stringencies and then have a whole lot of complications may find that the NHS is not attitudinally as receptive as it ought to be when they have hit problems.

One other advantage of the NHS having greater involvement and proper commissioning across the board, in accordance with the NICE guidance, will be that it will be much easier to enforce regulation of services more stringently. Contracts could be specific, as in the example that I have already given the Committee.

It was with alarm that I read the comments in the report from the Joint Committee on the Bill. In volume 1, Charles Kingsland, an NHS consultant, told the committee that,

“there are an awful lot of treatments that are in theory beneficial but have never stood the rigour of scientific evaluation”.

These treatments can be very expensive; whereas they may not do any harm, they may not do any good either. In this area of medicine, we have vulnerable patients who can be influenced by non-evidence-based medicine. Sheila Pike and Kate Grieve claimed that the policy of leaving treatment fees to be decided in relation to market forces has led to unjustifiably high prices for IVF in some centres, and is contributing to the disturbing phenomenon of fertility tourism. The committee made recommendations about fertility treatments, for fully costed treatment plans.

I urge the Committee to look at this amendment. It is completely in accordance with the NICE guidance and simply asks the commissioners to finally put their house in order for all couples suffering under infertility. I beg to move.

I rise in strong support of this amendment, and am sorry that my noble friend Lady Jay is unfortunately unable to be here this afternoon. Forgive me if I appear to repeat some of the points already made so ably by the noble Baroness, Lady Finlay, but I want to describe in some detail what the experience of infertility implies to the Committee, and to put it on the record.

People who are infertile initially face a degree of anxiety which causes quite a lot of personal stress. Eventually, when they start to realise that they are seriously infertile, even before treatment, they have a feeling of disbelief. The anxiety rapidly becomes a serious form of sadness in a large number of cases. Depression is common in infertile couples, both in females and males. It is common, if not usual, for a happily married couple to have sexual problems once they realise that they are infertile. It is also quite common for males to be impotent and women to be anorgasmic and not enjoy intercourse. I have heard it repeatedly said by many patients in my own clinic when I was a practising doctor in this field, “I feel like an empty vessel”.

Males also feel that there is no point in having sex—one of the greatest gifts that God has given us—any more. There is naturally a huge incidence of marriage breakdown in infertile couples, and something akin to real physical pain. I do not want the Committee to underestimate that. The pain of infertility is as corrosive and serious as the pain of an osteoarthritic hip, for which treatment is easily available under the health service. A relationship breaking down is not good for anybody. The depression is sometimes so serious that even suicide has been contemplated and undergone by these people.

There is a biblical moment when Jacob is faced by his aggrieved and beautiful wife Rachel, and she says to him:

“Give me children, or else I die”.

That cry rings down the ages. It is true in this country and, incidentally, in the third world, where infertile women are often abandoned. When people suggest that there are already too many babies in the world, and that these technologies are therefore not necessary, they only need to look at the suffering of, for example, African women in this situation, or women in Asia where there is a serious population problem. One should not equate the notion of overpopulation with the lack of need to treat these patients effectively and with genuine compassion. It is interesting that Jacob replied to his wife, “Am I in God’s stead, that I can give you children?”, an angry response that rings true today.

Most noble Lords are in this House because of singular, great, personal achievements—they have contributed hugely to society in one way or another and feel very proud of those achievements. I feel quite proud of some of my achievements, but I must tell noble Lords that nothing in my life is remotely as important as the fact that I have produced three healthy children who contribute to our society. For nearly all of us in our society, promoting the next generation is the single most important thing we do. We do it as parents, we can do it as children or in many other ways, but it is something that is denied to these couples. Indeed, it is denied in a very subtle way. Women who are infertile sometimes cannot even bear to go into a room where there are pregnant women or children. They cannot attend a dinner party where the commonest conversation will be how people’s children are getting on at school or how the rest of the family is. Very often, they cannot tell their parents that they are infertile because they are ashamed, embarrassed or in pain about such a private grief. I promise noble Lords that I am not exaggerating.

One issue is that the National Institute for Clinical Excellence has in its wisdom, and I believe it was a wise decision, recommended that three treatments should be available to infertile couples under the health service. What has happened in practice has been well described already. Hardly any commissioning authorities will pay for more than one cycle, and many will not pay for any cycle at all. There is a postcode lottery in this form of treatment. Noble Lords should consider what that means. The implantation rate of the human embryo under ideal circumstances is about 18 per cent. That means that the rate for one treatment cycle under ideal circumstances, which is doing rather better than nature, is about 18 per cent. I do not suppose there are many people in this Chamber of child-bearing age but if you were, and you went home and had regular intercourse during your menstrual cycle, your chances of getting a pregnancy would be less than 18 per cent, much less in most cases. There is a cumulative need to repeat the cycles. What happens is that one cycle is given and then the treatment is refused. That is like treating a cancer and then withdrawing the drugs half way through the therapy. It makes no sense. It results in a huge waste of public money where it is undertaken in the health service; it results in these patients being put through the pain and the investigations and the results being ignored, even though they have been paid for.

There is another problem, which is the issue I referred to at Second Reading. As was so eloquently said by the noble Baroness, Lady Finlay, these patients are ripe for exploitation. The biggest single problem is that 90 per cent of patients go to a free-standing in vitro fertilisation clinic outside the health service. In the commercial sector, that means that they get in vitro fertilisation whether it is the most suitable treatment or not. There are hundreds of treatments for infertility. Infertility is not a disease; it is a symptom. If I have a pain my chest, I do not immediately ask for a bypass operation. I might have indigestion, high blood pressure, some cardiac impairment or bronchitis or I might have broken a rib, but once the infertile patient goes to a private clinic she gets a treatment that is not based on any solid medical evidence but is the treatment it can offer. That is why it is essential that these treatments are seen inside a comprehensive health service, the kind of health service that we are justifiably proud of in this country. Inevitably many patients who are given vitro fertilisation do not justify the treatment because if they were given much cheaper treatments they would become pregnant; indeed, some may get pregnant without any treatment whatever.

Exploitation is a real issue. The combination of desperation and high costs is corrosive not only to the patient but to medical practice. That is why the yardstick of having a really effective health service treatment is extremely important; indeed, in my view, if there had been proper health service provision in the beginning I doubt whether the 1990 Act would have been necessary because the health service could have very adequately regulated most of these clinical treatments, excluding the research. There are other problems.

The noble Baroness referred to a number of treatments which are totally non-evidence based that are offered to patients in the private sector. One is immune treatment for people who might undergo an early miscarriage or failure of implantation. People are being given treatment which most immunologists regard as being slightly dangerous, if not very dangerous; for example, gamma globulin treatment by injection or suppression of their immune system in a hopeless attempt to get these people pregnant. Of course some of them get pregnant, but no properly controlled studies have been done to justify that treatment, and certainly not to justify it in the private sector.

I have no problem with a private clinic offering treatment on a research basis, but if it is on a research basis then it is not reasonable for the patient to pay for that research. That should be done independently, and it concerns me that the Human Fertilisation and Embryology Authority has not been more rigorous in pursuing that line of thought in its code of conduct.

That is not the only treatment; the treatment of chromosome screening, which is widely offered at around £2,000 a time, has no scientific evidence, except in very rare circumstances, that it actually works. Indeed, the Cochrane review, which is the official review of these treatments, says that this should be seen merely as a research procedure. Why should patients pay £2,000 in the unwitting belief that this treatment will help them in some way when there is no evidence that it will? I will not go on with other unproven treatments because I do not want to bore the Committee at great length.

I must refer to two other issues. One of the real concerns that has already been raised is the issue of fertility tourism. That is not a good situation. It is very concerning that some clinics in the private sector clearly have arrangements with overseas consultants or clinics where they send patients when the treatment is not allowed under the HFEA. That should be written into the code of conduct. If we have this kind of approach from the commissioner of infertility treatment that would be a start to better regulation in this area.

Finally, the noble Baroness, Lady Finlay, raised the issue of multiple embryos and the ideal solution of transferring single embryos. That is a very unlikely possibility unless this treatment becomes available in the health service. Unless that happens, it will not take place. At the moment there are large numbers of multiple births, which clearly have a massive drain on the public services. To keep a premature baby in an incubator costs roughly £1,000 a day, and a triplet pregnancy invariably means that you have three babies in incubators perhaps for a month or more. It does not take much mathematical expertise to work out the cost to the health service. Therefore, it is very important that the public sector is stimulated, and I hope that the Government will consider this amendment, which could be improved—on Report we can add bits to it—in all seriousness.

I ask the noble Baroness, Lady Finlay, for clarification, bearing in mind the very moving comments of the noble Lord, Lord Winston. If it is true that there is only one treatment per woman at the moment, could the specialist service commissioner allocate three treatments to everybody who undertook one treatment—in other words, if the first treatment did not bring fruition, they would be allowed up to three treatments? If that happened, surely two other women would be denied treatment in the first place. Is that the sort of wisdom of Solomon in which the specialist service commissioner would have to get involved?

Secondly, on the point made by the noble Lord, Lord Winston, about the sort of things going on in private clinics, could the specialist service commissioner regulate, license, or, if you like, monitor, services for in vitro fertilisation in private clinics?

Despite having sometimes had to resist the temptation to throw a cushion at the noble Lord, Lord Winston, when he appears on my television screen, for his sheer ebullience and over-enthusiasm, that was one of the finest speeches about infertility that I have ever heard. I hope that all patients countrywide will have access to what he said, because it truly encapsulated the sort of patients I saw in general practice and family planning clinics when I was practising. The sheer despair of those patients has to be experienced. It destroys marriages; it destroys families sometimes. The fact that it spreads beyond the couple needs to be emphasised. I thank him for that speech and I thank the noble Baroness, Lady Finlay, for tabling the amendment, which we of course support. It is obvious that this provision has to be made.

But—and the Committee would expect me to say “but”—the noble Lord, Lord Winston, mentioned overpopulation. The world is heading for disaster if we do not do something about population growth during the next decade. I appreciate that that is nothing to do with this problem. By denying infertile couples treatment in this country, we are not denying people who have too many babies worldwide the opportunity to limit their family size. We must do both. Even in this country, contraceptive services are not the best. Long-acting, reversible contraceptives are in very short supply, and many primary care trusts are not able to offer those methods for their patients. We must attend to that at the same time as we attend to the needs of infertile couples.

Sexual health provision has been much talked about. I have just been to a presentation by the Healthcare Commission, which reports that sexual health provision in this country still needs to be greatly improved. I seem to remember the noble Lord, Lord Winston, saying some time ago that he did not feel that pelvic inflammatory disease was a huge contributor to infertility. He shakes his head, so perhaps he did not say that.

We know that sexual health services are essential. A report in the Times today—a newspaper that I do not normally read—says that almost half the young people surveyed did not know where to find their sexual health clinic. We really must do something about that, because a whole generation of young people out there are heading for infertility problems when they get into their 30s and 40s. We must ensure that more emphasis is placed on prevention so that they do not hit those problems in later life.

Finally, we have still barely touched on sex and relationship education in this country. Again, in the survey reported today, most of those over 17 who were spoken to said that they have never had any proper relationship education their schooling. What are we doing with our young people? We are bombarding them with sexual images and making it the norm to have sexual intercourse with whomever and whenever. Yet we are not giving them the education, the facilities and the knowledge to prevent them getting into trouble: having unnecessary pregnancies and contracting unnecessary genito-urinary disease. I therefore urge the Government, who I hope will support and take on board the noble Baroness’s amendment today, to bear in mind that there is a good deal of work to be done on these other fronts, too.

I think we all agree with the noble Baroness, Lady Tonge, that we have been hugely privileged this afternoon to hear two such well informed and deeply moving speeches. On behalf of the HFEA, I shall add very briefly to what they said. The HFEA commissioned an expert report on multiple births. It revealed what clinicians in the field know: the risks, the sadness and the costs of multiple births. No less importantly, it also revealed that most women with good, skilled clinical help have just as good a chance of achieving a child through a single embryo transfer as they do through the transfer of two or more embryos. The HFEA, which is committed to the policy of single embryo transfer where appropriate—and it is appropriate for most women—has a huge task persuading women who want babies that this is so and a huge task persuading a lot of the private clinics in the field, for all sorts of obvious reasons. One of the greatest barriers is the reason for this amendment: the fact that it is so difficult to get fertility treatment on the NHS, which is so patchy in some parts of the country that it seems impossible. If the NICE guidelines of three cycles were available to every woman seeking fertility treatment across the country, this would do a huge amount to help women to see that it is in their best interest to have a single embryo transfer rather than to have two or more embryos transferred. We should support the amendment very strongly indeed.

I was a member of the Joint Committee that considered the draft Bill. We supported the essence of the amendment, the purpose of which, as I understand it, is to make IVF treatment available throughout the NHS in this country. If that happened, my understanding is that the trust using the facilities that are commissioned would be supposed to follow the NICE guidelines. The NICE guidelines are not absolutely mandatory, as I understand the present position, but they are certainly supposed to be what lawyers refer to as a persuasive authority. It would therefore be rather strange if the NICE guidelines were to be departed from in the provision of this service. So although the amendment does not directly mention the point, the inference that can be drawn from it is that if it is made effectual, the NICE guidelines will come into operation when these treatments are given and will I hope be followed. That means three cycles and a single implantation.

I support the amendment. The issue is quite simple: is infertility a medical condition? If it is, should treatment be available in the NHS? The noble Lord, Lord Winston, very clearly stated why it is a medical condition and why it should be treated as such. The issue is then: if it is available, how should it be made available in the NHS? One route is clearly the commissioning route whereby the commissioners are asked to ensure that this service is available in their areas. The second is that the NICE guidelines are followed. The All-Party Group on Infertility also recommended that these services should be available in the NHS. I come from a part of the United Kingdom where for years we have been fortunate enough to have these services available under the NHS. It is not costly, therefore, to patients who seek them.

On properly conducted research—this is extremely important—the evidence suggests that, in terms of successful outcomes and reduction of complications, the best treatment for patients with infertility is in vitro fertilisation. Yesterday we were talking about over stimulation and hyperstimulation of ovaries. This is more likely with some of the treatments that do not involve in vitro fertilisation, such as clomiphene and gonadatrophin treatment, which produce severe degrees of hyperstimulation of the ovaries, not the mild kind that occurs in about 30 per cent of patients.

On the evidence, in vitro fertilisation is the best treatment. Infertility is a medical condition and the question is, therefore, why the treatment should not be available under the NHS. If it is a cost issue, many other treatments have cost issues and the costs will have to be managed, but the principle needs to be accepted that these treatments should be available in the NHS. I support the amendment.

I digress slightly and turn to the issue of multiple pregnancies. I declare an interest as a father of twins. For years I studied multiple pregnancies and their outcomes, which was very interesting. It is correct that higher order births above two have severe degrees of complications and the outcomes are poor. In the case of dizygotic twins—I must not be accused of bamboozling science again—the incidence of non-identical twins occurs in different proportions in different races. In the United Kingdom it is one in 100 pregnancies; in Nigeria it is one in 25; in Japan it is one in 200. The outcomes for dizygotic twins are not dissimilar to singleton pregnancies. But the outcomes for monozygotic twins—which occur with the same incidence in every race and we do not understand why—are the same.

The problem with infertility treatment is the incidence of higher order multiple births of three, four and more. Furthermore, the incidence of monozygotic identical twins is slightly higher with infertility treatment than in naturally occurring births. If there are more than three or four, it is higher still. There are issues about putting in more than one or two embryos but that has to be matched with the successful outcomes of pregnancies. I support the amendment.

I support the amendment of the noble Baroness, Lady Finlay, for two reasons. Many of us who have worked in this field know that much of the drive for regulation and the fears about ethics come from the fact that 80 or 90 per cent of the work is private, with all the dangers that attach to it, in a field which has proved very lucrative. If much more of the work were carried out in the NHS we would have fewer fears about ethics, it would become mainstream and fears about breaking the law would be reduced, it would be less competitive and there would be less of a drive to use multiple embryos in order to produce a greater success rate. In other words, this treatment should be mainstreamed so that it ceases to need the kind of attention that this House has to give it over so many days.

Nevertheless, there will be the problems which attach naturally to the NHS of speed and demand on resources. One can sympathise with a hospital that has to balance the need for cancer treatment against the need for infertility treatment. It would be wrong to believe that reproductive tourism would be reduced either way because one of the consequences of our membership of the European Union is that everyone has the same right to move around Europe freely in search of medical services and there is the right to freedom of movement of goods and services. In other words, British people will always be able to go abroad to seek a treatment that they cannot get here. Conversely, I imagine that people in Europe would be able to come here and seek our NHS treatment, were it to be widespread. This is perhaps a difficult solution, but nevertheless in the long term it would mean that one could have much greater confidence in this area of the law.

I, too, support my noble friend Lady Finlay. I passionately believe that this area should be regulated inside the National Health Service. I thought the noble Lord, Lord Winston, made a very compelling case to us today and at Second Reading when he spoke about those who operate outside the NHS. He described some of their suspect practices and gave the impression that charlatans were operating, with some very bogus therapies being produced that were not helping patients who presented themselves. For those reasons, regulation within the National Health Service is a far better way for us to proceed than that which unravelled after the 1990 legislation.

I was struck when listening to my noble friend Lord Patel talk about the issues around twins. I hope that the Minister will accept his plea for more research to be done into those unknown causes. I know from our private conversations that my noble friend knows a huge amount about the subject. I hope that the House will listen carefully to him. My noble friend Lady Finlay quoted Dr Charles Kingsland earlier but she does not know, although my noble friend Lord Patel does, that 17 years ago, when the 1990 legislation was going through both Houses, my own wife miscarried a twin and Dr Kingsland was the doctor on duty that night. I have followed this issue carefully and it is one that we should spend more time trying to understand and diagnose.

We should also look more closely at the issue of prematurity. I recently chaired a meeting that was addressed by one of the leading authorities in the field, Professor Brind, who produced evidence that where people have had a pregnancy end prematurely, there is subsequently a higher risk of prematurity leading to the very issues that the noble Lord, Lord Winston, described and the additional costs that arise from dealing with very early birth, some of which can bring disabilities with them. There are long-term issues there that we need to discuss.

I say to the noble Baroness, Lady Tonge, that there is no difference between us about people having the right to decide about the number of children they have, but it is worth pointing out that in OECD countries the population has been falling. If it were not for the very welcome arrival of Polish people and others in our country, our population would have been falling too.

The issue, surely, is one of poverty. My late mother came from the west of Ireland and, as everyone knows, in the 19th century before the Irish famine the population was 8 million but it fell to 4 million, and the reason was acute poverty: 3 million emigrated and 1 million died. It is my passionate belief that, throughout the developing world, if we attack poverty we will see a normal reduction in family size.

I agree with many of the noble Baroness’s other remarks and I hope that the Government will take these issues seriously.

I rather hesitate to intervene in support of the amendment in view of the expertise so brilliantly expressed by my noble friends, both professional and political. I speak from my own experience as a former GP, as well as on behalf of my colleagues and the British Medical Association, to back my noble friend in his reasoning that infertility is a pathological condition. It is not merely a problem that some people have, which is their own responsibility to look after. It is a serious failing of the National Health Service that infertile couples have to turn to the private sector, with all the problems my noble friend has described. The amendment is overdue and we should support it.

That was another extraordinary debate. I am proud to be able to participate in it.

As the noble Lord, Lord Winston, and the noble Baroness, Lady Finlay, passionately pointed out, infertility affects thousands of people across the country. Approximately 27,000 people receive infertility treatment every year, both privately and in the NHS. The Government recognise the pain, distress and stress caused by fertility problems. As a mother of three, I recognise that the pain for those who are infertile must sometimes be intolerable.

I listened with care to the speech on sexual health by the noble Baroness, Lady Tonge. It is an important issue, but it is for another time.

The Government are committed to improving the provision of IVF services. We began that process when we commissioned the NICE fertility guidance some seven years ago. The guidance was published in 2004, and recommended among other things up to three cycles of IVF for eligible couples. At that time, we recognised, as did NICE, that the guideline could not be implemented in full overnight, and we asked the NHS to begin by offering at least one cycle of IVF to eligible couples. Most PCTs now provide this, but we recognise that there remain considerable variations in access criteria from locality to locality. I should explain that NICE technical appraisals are mandatory, but that NICE guidelines are not. The fertility guide provided by NICE in 2004 was a guideline.

The noble Baroness, Lady Finlay, was right to point out both the problems and the examples of good practice in certain parts of the country—although I recognise that they are too few. She was right also to mention multiple births. The noble and right reverend Lord, Lord Harries, told us of the deliberations in the HFEA. I understand that the HFEA has today called for a professionally led, co-ordinated national strategy to reduce the number of multiple births following fertility treatment. The Government will consider the part that they can play in that strategy, including through the expert working group on primary care trusts that we are in the process of setting up. I shall speak about that again shortly.

To help address the regional variations, we are funding a project run by the leading fertility patient support organisation, Infertility Network UK, to work with the NHS to identify and disseminate good practice in the provision of fertility services, and to develop standardised criteria for access to IVF, such as whether to treat people who have children from previous relationships.

We are also in the process of setting up an expert working group whose remit will be to identify the barriers, which have been graphically described, to the full implementation by the NHS of the NICE fertility guidelines and to provide advice, support and information to help overcome them. We of course need better commissioning. The group will comprise of NHS commissioners and the leading fertility patient support organisation.

This is the best way to improve access to NHS IVF services, as it aims to improve services while retaining local decision-making to meet the needs of local populations. The crux of our discussion today and of many debates in this Chamber about the health service is the discrepancy between our national policies and the way in which they are implemented on the ground. The best way forward is to listen to the expert group. We will ask it to consider the spirit of the amendment of the noble Baroness, and to consider recommending that PCTs should identify local IVF needs, explain their local decision-making and report to SHAs annually on the process and outcome, with the SHA making the report public. Naturally, I would facilitate meetings between the noble Baroness, the noble Baroness, Lady Jay, and the expert working group to ensure that their clear, passionate views were taken into account. I hope that, on that basis, the noble Baroness will feel able to withdraw her amendment.

I am very grateful to the Minister for her reply and for being so instructive about the instructions to go to the strategic health authorities on commissioning. I still have some concerns, however. I reassure the House that the NICE guidance is not on IVF alone but on fertility assessment and treatment for people with fertility problems, and deals with the full spectrum from the beginning of infertility. I assure the Committee—and the noble Baroness, Lady Tonge, knows this—that this includes screening for chlamydia and other sexually transmitted diseases right at the outset. It is very comprehensive guidance, which is why it is such a good guide to commissioning.

I remind the House that when there are multiple pregnancies and babies are born prematurely, we have a huge problem, as we have a shortage of neonatal cots in special care baby units in this country already. We have this terrible spectre of babies being transported around the country. The speech given by the noble Lord, Lord Winston, was absolutely wonderful and his words—or the words from the Bible—will ring in everybody’s ears: “Give me children or I am as good as dead”. So many people feel like that. I have colleagues who have undergone or are undergoing infertility treatment at the moment who are barely coping with the activities of daily living because it is so dominating their lives.

I hope I am not misleading the Committee, but I understood that the cost of the NHS providing that sort of treatment is somewhere in the region of £3,500 for a cycle. If you compare that to a day of a neonate in the—but I think that the noble Lord, Lord Winston, wishes to intervene and correct me, which I shall appreciate.

I did not really want to interrupt the noble Baroness, but I seriously believe that the cost of the NHS treatment has been considerably inflated. It is fair to say that many trusts charge an arbitrary sum for IVF treatment and that if it was effectively costed out it could be provided at a much lower cost. Moreover, if we were more cautious with the expensive drugs that we use, as we have been advocating, the cost could be further reduced. That is one reason why it is very important to keep a research arm within the public sector, so I hope that that can be incorporated. I think that £3,500 is a considerable overestimate.

I am very grateful to the noble Lord, Lord Winston, for correcting me on that, but those were the figures that had been supplied to me.

In summing up, I stress the remarks just made on research. If these contracts are within the NHS, we can begin to look at translational research for ways to make infertility treatments even more cost effective, which is not going to be done in the private sector as it would work completely against its profit motive. In that way, we lock ourselves into poor standards that are replicated rather than locking ourselves into assessing outcomes against standards, benchmarking services and, one hopes, coming up with what may become a really very cheap way of coping—and I use “cheap” in the best sense of the word. It would be a cost-effective way of coping.

I hope that speeches such as that of the noble and learned Lord, Lord Mackay, have answered the concerns of the noble Baroness, Lady O’Cathain, in that this would not mean spreading provision more thinly. These services are available, or they can be if things are organised a little more efficiently and the contracts are in the NHS.

I shall go away and reread all the comments and contributions today. I am most grateful to noble Lords for all their contributions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Armed Forces: RAF Nimrod XV230

My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend the Secretary of State of Defence. The Statement is as follows:

“Mr Speaker, I am able to inform the House today of the findings of the Royal Air Force board of inquiry into the crash of the RAF Nimrod XV230 in Afghanistan on 2 September 2006.

“First, I know that the entire House will join me in paying tribute to the 14 serving personnel who lost their lives in this tragic incident. Our thoughts are with their families and friends, and indeed the men and women of the Armed Forces who I know feel the loss of their colleagues very deeply. Also, I would like to pay tribute to RAF Kinloss. This close community was hit hard by the Nimrod tragedy, but it has maintained magnificent support for the Nimrod crews deployed in support of operations in Afghanistan.

“I should remind the House that the purpose of a board of inquiry is to establish the circumstances of the crash and to learn lessons. A board of inquiry is a statutory process under Section 135 of the Air Force Act 1955 and is convened for any air accident. It makes recommendations to the chain of command on its findings. It does not seek to apportion blame. I am placing a copy of the board’s report in the Library of the House, redacted only to withhold personal information that we are required to protect under the Data Protection Act and information that could prejudice the security and effectiveness of the Armed Forces.

“The report is a detailed technical document. I am conscious that, in the time available for an Oral Statement, I will not be able to do justice to all the issues it raises. Therefore, I am making a supplementary Written Statement which sets out the board of inquiry’s conclusions in more detail, along with a summary of its recommendations and the actions taken by the chain of command.

“The board established that, on 2 September 2006, RAF Nimrod XV230 took off from its deployed operating base at 0913 hours Greenwich Mean Time on an essential operational flight. The initial stages of the mission appear to have gone according to plan. At 1111 hours, approximately 90 seconds after completing air-to-air refuelling, the crew experienced almost simultaneous fire and smoke warnings; smoke was observed in the cabin and flames from the rear of the engines on the starboard side. Shortly afterwards, the aircraft depressurised. The crew commenced emergency drills and, at 1114 hours, transmitted a mayday alert and turned to head for Kandahar airfield. At 1117 hours, a Harrier GR7 pilot reported that the aircraft had exploded.

“A combat search and rescue team confirmed that there were no survivors. Subsequently the site of the crash was secured, for as long as it was considered safe to do so, by a combined force of Canadian and British units. As quickly as possible, the board of inquiry was convened and travelled from the UK to the operational theatre to begin its investigation.

“The board of inquiry has conducted a thorough investigation with the material available to it. Throughout this process, the board has been assisted by other independent agencies, including two air accident investigators from the Air Accidents Investigation Branch of the Department for Transport. It has been unable to identify with absolute certainty the cause of the fire. None the less, the board has deduced the most probable area where the fire started and the probable causes of the events and the factors that led to it.

“The board of inquiry concluded that the crash was not survivable. The cause was a fire that most likely resulted from escaped fuel igniting against a hot pipe in a compartment near the starboard wing-fuselage attachment—the No 7 tank dry bay, not in the bomb bay, as some have previously suggested. The fuel probably gained access to the pipe through a gap between two types of insulation. The fuel most likely came from one of two sources: a pressure-relief device in the main fuel tank, which may have released fuel during air-to-air refuelling, or a leaking fuel coupling.

“It is clear that the crew of Nimrod XV230 faced a series of complex and demanding emergencies. Throughout this incident they acted in an exemplary manner, calmly performing drills initiated by their captain in an attempt to save their aircraft. All are a credit to their respective services and to their families. I am sure that the whole House will join me in honouring their bravery and professionalism.

“This was a tragic accident, but there were a number of contributory factors that the board has identified. Both fuel and hot-air components are present together in the No 7 tank dry bay. The underestimation of that hazard was considered by the board as a contributory factor. Further possible contributory factors that could not be discounted and which are subject to further investigation include: the fuel and hot-air systems maintenance policy; the age of some of the component parts; the lack of a fire detection and suppression system within the No 7 tank dry bay; and the failure to consider the cumulative effects of a number of changes to the air-to-air refuelling capability when it was formally incorporated into the aircraft in 1989.

“The board found no evidence that the maintenance or servicing conducted on the aircraft was a cause or contributory factor in the loss of XV230. It also concluded that, while the continued commitment to long-term operations places pressure on the Nimrod force, there was no evidence that this was a cause or factor in the loss of the aircraft.

“It seems to me that some of the findings of the board of inquiry identify failings for which the Ministry of Defence must take responsibility. On behalf of the MoD and the Royal Air Force, I would like to apologise for these failings to the House, but most of all to those who lost their lives, and to their families. I am sorry.

“At the time of the accident, the department took action to ensure that a similar scenario could not occur again on the Nimrod aircraft. These measures have been revised as the board’s findings have emerged. The chain of command has accepted the majority of the board’s recommendations and continues to pursue the outstanding recommendations made by the board to enhance the safety of our aircraft. The hot-air system remains switched off so that there is no hot pipe against which any fuel could ignite and we have an enhanced inspection regime to examine for any sign of fuel leakage. QinetiQ has conducted an independent investigation into the fuel system and confirmed that, in light of the measures we have taken since the crash, the fuel system is safe to operate. Air-to-air refuelling has also been suspended subject to further investigation. The Chief of the Air Staff’s professional judgment is that the Nimrod fleet is safe to fly. I have accepted his advice.

“By its nature, the board was not in a position to go into the history of these arrangements or to assess where responsibility lies for any failures. I do not underestimate the difficulties that face those responsible for assuring aircraft safety. Flying will never be risk-free. But I do believe that the families of those who died are due more of an explanation of the history than the board of inquiry could be expected to provide. I have therefore decided to put in place a review of the arrangements for assuring the airworthiness and safe operation of the Nimrod aircraft over its service life; to assess where responsibility lies for any failures; to assess more broadly the process for compiling safety cases, taking account of best practice in the civilian and military world; and to make recommendations.

“I intend that this review will be led by a senior Queen’s Counsel, assisted by technical experts on aviation systems, who will examine all relevant papers and interview all those in a position to assist. BAE Systems, the aircraft designer, and QinetiQ, which supported the department in consideration of the safety case findings, have agreed that the review will have their companies’ full co-operation. The review will be able to recommend a full public inquiry if it is considered necessary and will keep the families of those who died informed of progress. We will publish the findings of the review, subject to considerations of operational security. I will make a Statement shortly confirming the membership and terms of reference of the review.

“All of the families have already received lump-sum payments through the Armed Forces pension scheme or through the Armed Forces compensation scheme and, where appropriate, ongoing pensions are now in payment. We are also in contact with lawyers representing a number of the families over additional claims for common law compensation. I have directed that these claims be assessed and settled as quickly as possible and for substantial interim payments to be made where appropriate.

“I recognise that the board of inquiry report will be painful reading, but I hope that the families and friends will take some comfort in finding answers to many of the questions that arise after an incident such as this”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for advance sight of the Statement. The loss of the Nimrod XV230 in September last year was a tragedy. Our first thoughts go to the families and friends of those who were killed. We on these Benches join the Minister in paying tribute to the crew who gave their lives in the service of this country. They did their very best, in a highly professional manner, to try and save their aircraft.

We also pay tribute to RAF Kinloss and the crews of other Nimrods who are currently deployed in support of vital operations in Afghanistan. We should not forget that they and other Royal Air Force personnel are constantly exposed to danger. We thank and congratulate the president and members of the board of inquiry for their thorough and hard work in very complicated and demanding circumstances. I pay tribute also to members of A Squadron, The Royal Canadian Dragoons, who at the time of the crash were about to go into operations against the Taliban. They saw the plane in difficulties, heard and saw the explosion, and were very quickly on the crash site, which they secured. With the Royal Air Force regiment, they removed the bodies and sensitive equipment.

This Nimrod was a very old aircraft, dating from the 1960s, which had been used very extensively, particularly in recent years. The plane was flying only because its replacement, the MRA4, has been delayed to save money. The Minister will be aware that many service men and women feel that this exemplifies the “Treasury view” that it is more cost-effective—and therefore preferable—to risk lives than to spend money which may not be essential. They feel that it reflects the wrong answer to the question, “How little spending can we get away with?”. In the mean time, the Royal Air Force will have to carry on with an ageing, unsatisfactory fleet. Can the Minister confirm that the ISD—in-service date—for the Nimrod MRA4 is still 2010?

While we welcome the setting up of the review of arrangements for assuring the airworthiness and safe operation of the Nimrod, can the Minister assure the House that these planes are fit to fly in the mean time? These Nimrods require a high level of maintenance. Are the Government satisfied that there are sufficient personnel in place with the technical skills to keep these planes flying safely? An investigation by QinetiQ last year found that there was a considerable loss of expertise and experience.

The Statement mentions that there was a failure to consider the cumulative effects of changes to air-to-air refuelling capability and that AAR of Nimrods has, for the time being, been terminated. Can the Minister assure the House that this will not resume until safety issues are fully understood?

Finally, our Armed Forces are operating at a tempo well in excess of that for which they are resourced. There is a continual failure by the Government to properly understand the needs of the Armed Forces. The Statement admits that the MoD must take responsibility for some of the findings of the board of inquiry. There are reports in today’s newspapers of £15 billion in cuts to the defence budget. I hope the Minister will be able to tell us that those reports are quite untrue and that the Government will give the Armed Forces the resources that they need to do their job properly.

My Lords, I thank the Minister for repeating the Statement and I associate myself and these Benches with the condolences expressed to the crew and their families regarding this incident. Words are always inadequate to express sympathy, but I hope that that sympathy will be passed to the families.

The essence of this was that a very, very old aircraft involved in crucial operations in supporting our Armed Forces was lost in an accident. Was that very old aircraft up to the job? The replacement of Nimrod is an ongoing saga of which we have heard dribs and drabs and details for many years. Will a finite date be set for its replacement? You would expect no aircraft of that age to be crucial to troops on the ground. Will the Minister confirm that it is seen as vital in the operational field of Afghanistan to have the intelligence-gathering capacity of the Nimrod? Without this we are effectively letting our troops down. If those planes cannot be guaranteed to be sufficient to deliver that capacity, we are risking the lives of the people on the ground, as well as the crews, and risking the ability of this country to fulfil its mission in Afghanistan, with all the things that come with it. I would encourage the Minister, when she replies, to give me an undertaking that sufficient spending will take place to make sure that this can be done properly. If it cannot, one wonders what we are doing there in the first place. If that means we have to go somewhere else to find such technology, will the Minister ensure that at a certain point in the future we will do that? We owe this to the air crew and those they support.

Returning to the essence of the Statement, the idea that something as crucial as intense heat generated by a piece of machinery would be allowed to come into contact with aircraft fuel, and that no further thinking was done about this, would seem an error that one hopes would never be allowed to recur. Is the Minister absolutely sure that this accident could never happen again with the new fire prevention methods in place, unless there was some external intervention such as enemy action? We need an undertaking such as that, especially to support the troops that depend on it.

I look forward to the Minister’s reply. When are we going to ensure that our troops get sufficient machinery, support and training? As the noble Lord, Lord Astor, mentioned, is there sufficient staff to maintain these aircraft? Have the pinch-points—I use the accepted jargon of the Armed Forces—been addressed as well? I look forward to the Minister’s reply.

My Lords, first, I appreciate the comments of both noble Lords about those who were on the Nimrod, and I am sure that their families and friends will also appreciate the condolences that have been expressed. It is right that on an occasion such as this we acknowledge the professionalism, skill and dedication of those involved, and I am sure that their families will appreciate what has been said.

Several questions have been asked about the age of the aircraft and other matters. I say right at the beginning that, in comparison with other aircraft that are flying around the world at present, the aircraft was not exceptionally old. In fact, the average age of the British fleet is considerably less than that of the United States fleet, even though the US spends an enormous amount more on its fleet than we do on ours. So it is not simply a question of ageing aircraft; the matter is far more complex than that. Those who have had time to read the report or look at it in detail will understand that it is not simply a question of the age of the aircraft.

Obviously, an older aircraft requires a great deal of maintenance, and I was asked about the skills required in that regard. The board of inquiry made it very clear that there was not a problem with maintaining or servicing the aircraft. Beyond that, there may have been a problem with the policies adopted and a question over whether there was a full understanding of all the changes and additions that had been made to the Nimrod, including air-to-air refuelling, which was an additional facility and not there originally. This is a complex issue, and therefore we have agreed to the review so that the whole history of every aspect and dimension can properly be taken into account.

I was asked specifically about the situation regarding air-to-air refuelling. Noble Lords may know that such refuelling has stopped at the moment. Although we cannot say that it was definitely air-to-air refuelling that caused this accident, we have to be cautious. As your Lordships know, there was another incident in November, and the problem associated with that is not yet fully understood—in fact, it has been impossible to replicate that problem on the ground. Therefore, air-to-air refuelling has been stopped at the moment, and I can give an assurance that it will not recommence until we are sure of the cause of the problem and certain that it is absolutely safe to move on. We would not take risks in that respect where there is a lack of knowledge.

The noble Lord, Lord Addington, asked me about the heat that caused the fire. The heat was not generated by machinery but came from the secondary cooling pipe. There is a lot of machinery on these aircraft and often it needs to be cooled. The pipe in question has now been turned off, so there is no possibility of it getting hot in the future. We have assessed that, although the cooling that came from that pipe is important in some circumstances, it is currently not vital on operational missions. Therefore, that ignition has been removed, which is extremely important.

Questions were also asked about the MRA4 and its replacement. I can confirm that its in-service date is 2010, as has been the case for some time. There has been a delay but it has not been due simply to the cost. The estimated delay because of cost factors has been one year, whereas the overall delay has been seven years, and six years are accounted for by the technical challenges that came to light once the decision to go down that path had been made. So, at the moment—I think that this is a safe assumption—we are expecting the MRA4 to be in service in 2010. In terms of the surveillance and reconnaissance work, since October we have had the Reaper in operation over parts of Afghanistan. That is helpful.

Perhaps I may say a word about the aeroplane being fit to fly. There is no possibility that the Secretary of State, or anyone within the MoD, would allow any aircraft to fly unless they had absolutely the best advice that it was safe. I know that that is taken very seriously because, contrary to the suggestion made earlier, lives will always come first. I was asked about safety; safety is paramount. No one, be they the Secretary of State or the Chief of Air Staff, would ask people to do things that were not safe. Operationally and in every other way, the safety of our troops has to come first. The board of inquiry’s report makes many recommendations, but all of them are aimed at making those aircraft safer.

I shall finish my comments on the questions raised by mentioning the Canadians, who helped in the operation, as the noble Lord, Lord Astor, pointed out. Members of A Squadron of the Royal Canadian Dragoons were in the vicinity and saw the aircraft in difficulty in the air. When they realised that it had crashed, despite being on an operation of their own, they diverted to the crash site, helped secure it, stayed overnight, then went back to complete their operation. We owe them a debt of gratitude for the work that they did.

My Lords, I thank the Minister for repeating the Statement and associate myself with the expressions of condolence to the families and friends of those who lost their lives in this tragic accident. We should also thank the noble Baroness for indicating that further inquiries will go on into this accident, and for admitting, as she did in the Statement, that some of the fault lies within the Ministry of Defence. That is a frank admission and we should recognise it as such.

One difficulty for the Nimrod force is that it has had to operate at a high intensity and it will continue to operate at a high intensity. It is clear that age is not the reason for this accident, but aircraft of that age do present one with potential further problems. Therefore my question refers to the Nimrod MRA4, which is now due into service, according to the noble Baroness, in 2010—I thought it was 2011, but let that pass. I wonder whether anything can be done, perhaps as an urgent operational requirement, to bring forward the entry into service date of that aircraft and so reduce the time that the present Nimrod force has to continue to operate. There is, as has been expressed elsewhere in the House, an urgent need to get as much reconnaissance and intelligence information as possible for those operating in these theatres. If anything can be done to bring that aircraft forward, I would welcome that very much.

My Lords, I appreciate the comments that the noble and gallant Lord has made and I am sure that the families will, too. I am glad that he recognises that the Secretary of State has taken an important step by acknowledging that responsibility for parts of the problem lies within the MoD and the RAF. It is right that when problems of this scale arise, we should do that. I appreciated his comments. It has been a very difficult time for everybody involved, and the board of inquiry report will be read thoroughly and be considered carefully by everybody who has been involved at every stage of the development of this aircraft.

The noble and gallant Lord, Lord Craig, is quite right to talk about the high intensity of the work that the Nimrod undertakes in Afghanistan and elsewhere. It is important work and quite critical to many of the operations we undertake there. I understand why the noble and gallant Lord would like the MRA4 to be in operation as soon as possible; I am sure that that is the case with everyone in theatre. However, it cannot go into operation—the noble and gallant Lord knows this better than I—until it has undergone all the tests, all the assessments and all the work, and we have all the assurances we need. Yes, it would be good if we could have it earlier, but we cannot have it in operation until we are fully satisfied that all the technical challenges that were so difficult in the early days have been completed and that we can safely deploy it.

I appreciate the remarks of the noble and gallant Lord about age not being a simple factor and the reason for the problem. He knows that the situation is more complex than that, and I am grateful to him for pointing that out.

My Lords, the Minister will be aware of my connections with the Royal Auxiliary Air Force and of the non-pecuniary interest I have recently mentioned in the Chamber. Does she accept that all our sympathies and thoughts are with the families of those who lost their lives and whose professionalism and bravery is well accepted by us all?

Looking to the future, the Minister has already this afternoon given a timescale for the replacement of the Nimrod fleet. Can she say a little more about how long it will take to upgrade the existing Nimrod fleet, which is obviously extremely important in terms of what she has already said?

My Lords, there will be some overlap between the new MRA4 coming online and the existing Nimrods being phased out. The phasing out will start in 2012.

My Lords, it is natural that our thoughts should be with the families of those most concerned with this incident and that attention should be focused on the continuing serviceability of this aircraft. I am extremely glad that the noble Lord, Lord Astor of Hever, mentioned the strain on the servicing crews and those who must maintain our equipment. I remember, during the first Gulf War, that every morning I had to sign aircraft tickets sending specialists out to the Gulf to repair equipment which previously would have been repaired by people in service. The more complicated, and older, our equipment gets, the more care will be needed. Can the Minister assure the House that the same care will be taken to ensure the viability of the servicing crews of these aircraft as well as the serviceability of the aircraft themselves?

My Lords, the noble Lord, Lord Ramsbotham, makes a valid point. It is important that we get all stages of our operations right, including the servicing crews to ensure that we maintain the viability of aircraft once they have been deployed. He will know that there is a large community of people based up in Kinloss who provide a great deal of background support for the Nimrod. I give an assurance that we will do all we can to ensure that servicing crews are carefully considered and that we take the necessary steps to maintain viability of these aircraft throughout their operational life.

My Lords, I join other noble Lords in thanking the Minister for repeating the Statement made in another place. I welcome the board of inquiry’s report, which is not only thorough but extremely frank. It does not—I suppose because of the circumstances surrounding this awful tragedy—answer all the questions that many of us would wish to ask. However, it clearly and specifically covers the point that no fault, blame or criticism can be levelled at any of the 14 members of the Nimrod crew who lost their lives in this awful accident.

The report does not totally remove the concern that some may have that funding pressures played a role in the issues that came together to cause this accident. I accept that, as the report makes clear, it is too simple to say that the age of the aircraft caused the accident. I join other Members in extending sincere condolences to the families of the crew. They live with the emotional strains and concerns that come from losing a loved one in such a situation. I welcome the further review; many of us will follow it very closely. What ongoing communications will there be with the families? I welcome the fact that issues that have caused concern in the past—delays in pensions and compensation—have been addressed by the Secretary of State, but for those families today is not the end but just the end of one stage. Will the Minister explain to the House what ongoing arrangements are in place to keep in touch with them and to support them?

My Lords, I thank my noble friend for her comments and for her welcome for the work of the board of inquiry. I agree that the report is frank. It is frank when it does not know all the answers, and that straightforwardness has to be welcomed. The board of inquiry could not come to absolute conclusions. That is not a criticism of the board, which was straightforward and direct about the constraints under which it was operating. It was not possible to access the crash site as it would have been dangerous to the members of the board and to those charged with taking them to the site. The knowledge of the board was therefore limited. It has done a significant job and has presented a complex issue in a comprehensible way. The families will appreciate the tone, detail and honesty of the report, which includes listing what information they can be certain about and what there is still some doubt about. That mature approach will be appreciated.

I am glad that my noble friend welcomed the review. I am sure that many people will watch what happens in detail. My right honourable friend the Secretary of State will shortly be making a statement about who will be heading this inquiry and the terms of reference. It is intended that the families will be kept informed about developments so that they will feel that any remaining concerns they have can be expressed and that they will be taken on board and followed through.

However, I disagree with my noble friend about funding and this accident. The board of inquiry makes it clear that maintenance, servicing and operational pressures were not factors in this accident. They are the three areas where there could have been resource implications. It is clear that resources were not a factor in this, and we should say that clearly from the start. The House has been united in its appreciation of the work undertaken by the Nimrod crew and its back-up staff. On a day such as today we should think of the families and what we can do for them. We should continue to agree that this is a serious issue, that lessons can be learnt for the future and that people are accepting their responsibilities. If we can help the families by involving them and keeping them informed of what is happening in the further review, we should clearly do so.

My Lords, does the Secretary of State’s Statement not make it perfectly clear that three of the contributions to this tragic accident, which caused the loss of 14 British service lives, were, first, the underestimation of the hazard of fuel and hot air components being present together in the No. 7 tank dry bay; secondly,

“the age of some of the component parts”;

and, thirdly,

“the lack of a fire detection and suppression system within the No. 7 tank dry bay”?

I am of course quoting from the Statement. Does that not suggest very strongly—indeed, perhaps make it crystal clear—that this Nimrod aircraft was not fit for the purpose for which it was being used? Do not the Government have a very simple choice to make: they either provide the resources required for our military commitments, or they adjust our military commitments to the resources which they are prepared to provide? Which do the Government intend to do?

My Lords, I cannot agree with the conclusions that have just been reached. It is true that the issue of underestimating the hazards was a factor. It was one factor over many years, complicated by all the changes that have taken place, such as the introduction of air-to-air refuelling and its consolidation in the later 1980s. Some of these problems go back a very long way, and we have to look at every aspect from the design of the original plane to any of the changes that have since taken place.

The fire was caused by the hot air and the fuel. That was the source of the ignition. We have closed that hot air pipe so that that cannot be replicated in the future. So far as the suggestion that there could be fire suppression just in that area, it is far more complicated that that. It was suggested that there should be fire suppression in the bomb bay when the aircraft were being altered and fuel tanks were established. The bomb bay is a big space, and the combination of the tanks taking some of that space and proper suppression could have made the difference in certain circumstances. This fire did not start in the bomb bay, so that is not the focus at the moment.

Mention was made of the age of some components. That is true. The age of two components was mentioned as a possible—but only a possible—factor in this. The two components are the couplings and seals, which over time may have deteriorated. It is suggested that all the seals should be replaced. But there is a contrary view that if you disturb seals you might create a greater problem and another risk, because research shows that seals do not act consistently and predictably. That is being looked at further, and further comment will be made about it in due course.

The second issue about possible deterioration was in respect of the insulation. Where two different types of insulation around that pipe came together, a gap had developed. It is not known whether that gap developed because the components had not been replaced or whether it had been there from the start, so it is clearly not as simple as saying, “Some components were old—therefore they caused this problem”. These aircraft are audited and serviced frequently. It is important that we understand that the Nimrod’s overall safety record is very good indeed.

Human Fertilisation and Embryology Bill [HL]

House again in Committee.

Clause 11 [Activities that may be licensed]:

25: Clause 11, page 8, line 27, after “research),” insert—


The noble Lord said: In the absence of my noble friend Lord Patel—I must confess that I did not expect to be invited to move this amendment—I ask the Minister whether the present structure of the Bill is sufficient to fulfil the objectives discussed when the new regulations amending the Human Fertilisation and Embryology Act 1990 were passed by this House in 2001. The purpose of those regulations was twofold. The original Act was established to improve the treatment of infertility and to assist in the prevention of genetically determined disease. The new regulations introduced in 2001 were introduced to make it possible for, for instance, material developed from embryos to be used in the treatment of human disease.

Amendment No. 26, tabled by my noble friend Lord Patel, states that licences under the schedule should authorise activities in the course of providing therapy. My question, therefore, is whether the present structure of the Bill is sufficient to fulfil that objective, or whether it is necessary to amend it. I beg to move.

I thank my noble friend for moving the amendment for me, and I apologise to the Committee for having been caught up.

The amendment is intended to increase the scope of licences to include creating stem cell lines for therapy. The current provision under Schedule 2 to the Act sets out the activities for which licences can be granted by the HFEA. There are three categories: treatment, storage and research. Schedule 2(1) lists the activities that may be authorised under a treatment licence. It states:

“A licence under this paragraph may authorise any of the following in the course of providing treatment services”.

Section 2(1) of the Act defines treatment services as,

“medical, surgical or obstetric services provided to the public or a section of the public for the purposes of assisting women to carry children”.

That provision remains the same in the Bill.

Paragraph 3(1) of Schedule 2 provides that a licence may authorise the creation and use of embryos for a project of research which has been held to include authorisation of the creation and use of embryos for the derivation of embryonic stem cell lines. Paragraph 3(2) then lists the purposes for which the research licence may be granted.

The Bill includes a new purpose:

“developing treatments for serious disease or other serious medical conditions”.

However, it is a condition of all research licences that embryos created for research purposes may be used only for the purpose of that project.

The problem with that is that there are no provisions in the 1990 Act or the Bill that provide for the creation or use of embryos for the derivation of embryonic stem cells, particularly for the purpose of treating conditions other than reproduction. At present, embryonic stem cell lines from embryos and nuclear transfer for the derivation of embryonic stem cell lines is carried out under a research licence. That will continue until the technology is optimised. However, it is anticipated that, within the next five to 10 years, it will be necessary to derive such ES cell lines specifically for treatment, rather than research. Our current embryonic stem cell lines are all created using rabbit sera as feeder lines.

It is assumed that these lines will not be useable for treatment. I say assumed because they will use such lines in the United States for the first-stage trial in the treatment of spinal injuries. Regenerative medicine treatments will require the ongoing provisions of therapeutic-grade embryonic stem cell lines. These may be derived from surplus embryos from IVF treatment or following nuclear transplant. In the latter case, they will be genetically similar to the patient and can be used for therapy without the need for anti-rejection drugs. Embryonic stem cell lines may also be derived by nuclear transplant using the nucleus of a patient with a specific disease. Such lines will be used to investigate the disease in the laboratory. This may lead to an improved understanding of the disease and the development of new treatments.

We now also have the UK Stem Cell Foundation, which is a government/privately funded enterprise to try to take stem cell therapy to treatment. There are problems with regulatory issues. There is, for example, a high probability that the first clinical trials using ES-derived cells may be approved by the FDA and commence in the US. Due to the differences between the United States and the EU in the regulations that govern standards and the compliance of good manufacturing practice, it will be necessary for any embryonic stem cell for clinical use in the UK to be derived under EU/UK regulations and standards; that is, the cells proposed for the US trial would not be acceptable for use according to the EU cells and tissue directive, which came into force in the United Kingdom in July this year. Many universities and hospital trusts are upgrading their laboratories, even those for in vitro fertilisation treatment, to comply with the current GMP regulations for cell therapy. Our own UK Stem Cell Bank has already been given accreditation for GMP standards by the MHRA and the regulatory authorities.

UK scientists and clinicians are discussing a co-ordinated approach for deriving clinical-grade embryonic stem cell lines for future therapeutic use. At this stage, we do not know how many lines we might require, but we are not talking about thousands. Discussions are going on somehow to identify how many lines of clinical-grade embryonic stem cell lines will be required to satisfy the need for research and treatment. Because of the characteristics of embryonic stem cell lines—some people refer to them as being immortal—they can, if kept in ideal conditions, survive and grow for a very long time.

I do not think that defining the potential therapeutic use of ES cells derived either from surplus embryos from IVF or through cell technology research is satisfactory, or that legislation keeps pace with scientific and medical developments, and I realise that the amendment goes further than allowing licences for research. I am told that some commercial institutions already have clinical-grade embryonic stem cell lines, but they are not produced in this country. Following the report on stem cells by the committee chaired by the noble and right reverend Lord, Lord Harries of Pentregarth, some noble Lords recommended that all embryonic stem cell lines created in the United Kingdom should be deposited in the UK Stem Cell Bank and be available to all scientists for research and developing therapy. That applies here too. My amendment would extend this licence to allow this under licence and under regulation: my proposed new Section 3ZA defines the kind of regulation that would be required, so that the HFEA controls the licences that are awarded.

As the noble Lord, Lord Patel, has informed us, the HFEA currently has the power to issue licences for four types of activities: for treatment, for non-medical fertility services, for storage and for research. The Bill does not change this. Amendments Nos. 25, 26 and 49, tabled by the noble Lord, Lord Patel, would however extend the remit of the HFEA. It would enable it to license the creation and use of embryos for therapy. For instance, it could, as the noble Lord described, be used to derive personalised stem cells from embryos created for that specific purpose. It is important to distinguish that from the use of embryos in a research project, for instance, that seeks to understand how stem cells work. That is rightly within the remit of the HFEA. However, to provide for embryos to be created specifically for treatment or therapy that is not connected in any way to infertility or is part of a research project would be a highly significant development in the use of embryos. It would require very careful consideration. It is a step that the Government are not convinced should be taken in the Bill.

The HFEA’s scope to issue treatment licences is restricted to treatment to help a woman to have a child. Most people would agree that that is a right and proper use of embryos. It recognises the special status of the embryo and acknowledges concerns that embryos should not be created for inappropriate purposes. The use of embryos in research—subject to the research being necessary or desirable for a specific purpose, and the use of embryos for the research being necessary—is also a well established principle within the 1990 Act. The scope could extend to embryos being created and used for therapy in limited circumstances under clinical trials as part of the research licences. However, the introduction of a new type of licence that would allow embryos to be routinely created for therapy if the use of embryos for the therapy was considered to be necessary is an issue of a different order of magnitude altogether.

The noble Lord, Lord Walton, asked whether the Bill fulfils the purpose of the 2001 research purposes regulations. Yes, the Bill incorporates and builds on the research purposes as amended by the 2001 regulations. The list of research purposes is found in Schedule 2(6).

I note the exciting advancement cited by the noble Lord, Lord Patel, and his strong belief that his amendment is necessary to help us remain at the forefront of research. However, it clearly raises fundamental questions about the limits that should be placed on the use of embryos. It raises questions about whether the approval of such use of embryos should still lie with the HFEA or whether, as a medicinal product, it would be more appropriate for, for example, the Medicines and Healthcare Products Regulatory Agency to oversee this. It raises questions about making detailed provision in the Bill for a major technological development that may yet be some time away.

The Government regard this as a highly important issue about the future use of embryos which requires full and informed debate. It may be appropriate to have that debate once the potential benefits of the therapeutic use of embryonic stem cells are closer to being realised. I therefore ask the noble Lord to reconsider his amendment.

The noble Baroness advocates that this debate should take place in the future. Can she tell us whether the Bill’s regulation-making power could be used to extend the HFEA’s ability to issue licences on the basis put forward by the noble Lord, Lord Patel—or would this require new primary legislation?

Perhaps I may return to the point that I raised at the beginning, before the noble Lord, Lord Patel, spoke. It was my clear understanding when the House approved the new regulations in 2001 that the 1990 Act was being amended not to restrict it to approving treatment and research that was meant to improve the treatment of infertility and the prevention of genetic disease; the regulations amended the Act to make it possible to use embryonic material for the ultimate treatment of disease. I apologise if I am mistaken, but my clear understanding was that the regulations intended to allow the use of stem cells derived from embryonic material in human treatment.

I shall have to seek further clarification on the noble Lord’s point. However, in response to the noble Lord, Lord Jenkin, as I understand it, such research licences would require further primary legislation. This issue would not be covered by the regulation-making powers in the Bill before us. If I am wrong on that I shall come back to the noble Lord. As I understand it, however, it will require further primary legislation, but I have further information coming to me at this very instant. Can embryonic stem cells be used for research into treatment? Yes. The Bill allows the use of embryonic material for research into treatment. We are talking about the use of embryonic material for research into treatments and the use of embryos that can be created for therapy. As I understand it, those are two different things, but I stand to be corrected.

As I understand it the Bill will allow applications under regulation for a licence to create embryonic stem cell lines for research purposes. These research purposes include research on treatment but do not include creating embryonic stem cell lines specifically for therapy. My plea was that this is required to make clinical-grade stem cell lines—lines of a sufficiently high quality to have been produced under GMP facilities—available for use in treatment.

The noble Lord is right that we are talking about two different things, and he has explained it far better than I could. What he is seeking with his amendment, however, goes beyond the research that is currently covered in the Bill, and it raises deeper questions, not least the question of whether the HFEA itself should be responsible for regulating such research or whether it should be the Medicines and Healthcare Products Regulatory Agency. There are bigger questions to be explored, and the Government are suggesting that that happen at a later date.

I see the noble Lord, Lord Jenkin, looking queryingly at me. I understand his queries; I have perhaps not clarified whether this needs to be primary or secondary legislation. As I said earlier, I believe it has to be primary legislation, but I will come back to noble Lords.

I was looking more with admiration at the way the Minister manages to cope with some of these extremely difficult issues that, as a non-scientist, I only half understand. That was the only expression on my face.

I hesitate to intervene as a definite non-scientist. I apologise to the Committee for not being here for the very good debate that I understand there was on the previous amendment, which I had my name to. That was due to one of those problems of transport with which we are so familiar.

My concern is the same as the one the noble Lord, Lord Jenkin, was raising: whether or not future regulation and the embracing of a wider concept of the sort of work referred to by the noble Lord, Lord Patel, can be dealt with in the context of this legislation, or whether—since we could be creating a situation where we are retrospectively working on something that is happening, which we have avoided in all the legislation and regulation so far—we could not preview some of the work at this stage, which the noble Lords, Lord Walton of Detchant and Lord Patel, are discussing, in a way that would enable it to be embraced under a broader regulatory umbrella. The latter possibility would not require potentially retrospective primary legislation.

I wonder whether it would be helpful in due course for the Minister to write to everyone who has taken part in order to clarify this issue. My understanding as a member of the HFEA is that if any of the stem cell lines eventually came to be used for therapeutic purposes, that would fall outside the remit of the HFEA. Would the responsibility fall to the medicines and healthcare agency, or to another body? I think that that needs to be clarified.

I shall certainly clarify the position in writing. I have been informed that should we wish to use embryos specifically for therapeutic research purposes, we would need further primary legislation. I note that the noble Baroness, Lady Jay, said that such legislation might be retrospective. I will consider this matter further and write, if I may, to noble Lords before Report.

The Minister used the words “therapeutic research purposes”. I believe that that is agreed under the present regulations: in other words, research leading to the development of therapy. The problem arises out of the prospect of creating embryos solely for treatment purposes, which is a different issue. I hope that that would not require primary legislation, but could subsequently be included under secondary legislation. This is a matter on which I hope that the Minister will write to us. If it is not possible to do that, the amendment of the noble Lord, Lord Patel, has great importance and strength.

I think that I am not alone in supposing that the extension of research into this field is agreed to and welcomed on the grounds that it will lead to therapeutic use. It seems odd, therefore, to suggest that an amendment which simply foresees it should be rejected. Whether there needs to be another regulatory body when it happens is a separate question which I hope could be settled through regulations. The idea of having to wait and go through new primary legislation, with all the endless discussion that that involves, when all that is being done is putting into practice something which we all hoped would happen all along and which was the purpose of the extension that was agreed in 2001, seems to be an unnecessary obstacle in the way of the use that we all hope that this research will have.

Before my noble friend responds to the other inquiries that have been made of him, perhaps I may ask him whether it is intended that, within the scope of the amendment, interspecies embryos also would be used in therapies. Is it open to that interpretation?

No, it is not. Perhaps I may say something that might help the Minister in preparing her answer to us all. When these stem cell lines are used for treatment, EU and UK regulations will require that they will have been produced in what is called a good manufacturing practice environment, which is very strict. If they are not produced in that kind of environment, they will be rejected for use in treatment. Any lines that are produced in other environments could perfectly well be used for therapeutic research, but they cannot be used for treatment. It will take us some time. The facilities required are extremely expensive, costing more than £3 million to set up. It would be daft for everybody to have such facilities; it would be far better for one or two centres to have them and to be given a licence specifically to produce clinical-grade embryonic stem cell lines, with trials, which will be stored in further appropriate, good-quality facilities—our own bank has such facilities. The lines would then be accessible both to research workers and for therapy. We do not have to produce other lines.

Industry recognises this. I know that it already holds several such lines, but it will never give them to research workers or other people for use in therapy; it will use them for its own purposes. They are not being produced in this country, so they are not in our bank. Industry recognises that it needs to prepare clinical-grade, ES cell lines that meet EU and UK regulations. If we can do that for adult stem cells, where we can do without licences, why can we not have clinical-grade stem cell lines from ES cells?

Once more for clarification: the use of embryos for research into potential treatments for disease is allowed. Primary legislation would be needed to be able to use embryos for treatments, when the research has been proven. I note the strong views expressed by noble Lords and am grateful for their forbearance. I shall come back to them in writing, but I am sure that we shall return to the issue on Report.

When the Minister comes back in writing, would she be kind enough to define what she means by “embryo”? Are we talking about something up to the primitive streak or 14 days, or something else? Could we possibly have a name which means that an entity is 14 days old or up to the primitive streak, whichever is earlier, other than “embryo”, which also embraces a much later stage?

I have listened to the debate and thank the Minister for taking the time and effort to write to us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Clause 11 agreed to.

Schedule 2 [Activities that may be licensed under the 1990 Act]:

27: Schedule 2, page 54, line 28, leave out “the testing of embryos” and insert “embryological techniques and embryo storage”

The noble Baroness said: At this stage of the afternoon when I was at school we were allowed to put our heads down on the desk for two minutes for thinking time, but I suspect that we are not allowed such luxury here. I rise to move this amendment in the name of my noble friend Lady Barker, who cannot be here today.

We are concerned that training in embryo testing is too restrictive and there is a problem for embryologists who learn new techniques in a licensed research setting needing to apply those techniques also in a clinical setting. Of course, we welcome the reference in the Bill to the training of persons in the testing of embryos. However, the scope of the clause is very limited, being restricted solely to the techniques of embryo biopsy, which will be needed as part of genetic testing. At present, only a handful of clinics in the country are licensed and very few more are likely to apply, since it is so specialised. Someone will, I am sure, correct me if I am wrong, but I believe that only seven clinics are licensed for this technique.

On the other hand, all clinics offer embryo freezing, for which improvements in methods are needed; storage methods are evolving to include a technique called vitrification, in which an embryo is placed in a special protective solution for a very short period and then plunged directly into liquid nitrogen. That is proving better than traditional slow freezing, as it seems to protect the embryo better and provide higher intact survival rates on thawing. However, it is more labour-intensive; it needs skill to handle single embryos, one at a time, and to introduce the vitrification solution into the embryo with such precise timing.

I go into such detail on this matter because it requires very good training before the technique can be applied to patients’ embryos needed in their therapy. It could be practised using individual cells from embryos that are not suitable for replacement into the patient or when there are not enough cells to allow the embryo to be frozen and thawed using traditional methods. Individual cells could be vitrified and stored overnight then thawed the next day to examine how well the techniques have been applied.

In addition, some settings offer techniques such as assisted hatching, whereby the shell of the embryo—or the zona pellucida, as I found out it was called when I did my embryology—has a hole made in it with a laser or acidified solution or is simply thinned to improve the chances of the blastocyst hatching on day five or six when replaced in the womb. So it is to overcome the difficulty of there being too thick a shell around the embryo. There are other techniques whereby fragments that detach from some cells in the embryo or when a whole cell is disintegrated can be removed from that embryo prior to implantation, because it is thought that sometimes those fragments prevent implantation in some harmful way.

I hope that the Government will consider this probing amendment to see whether we can find ways of broadening the range and availability of training in all these techniques that I have tried to explain.

I have considerable sympathy with the intention underlying the proposal set out in the amendment. My only concern is that this part of the Bill is particularly concerned with protecting the programme of pre-implantation diagnosis relating to genetic disease. For example, as I said at Second Reading, the most severe form of muscular dystrophy, the Duchenne type, is manifest in boys and is transmitted by clinically unaffected females or carriers. One can now identify the carrier by various genetic techniques. If one can obtain from that carrier woman an ovum, have that fertilised in vitro by the husband's sperm and allow the embryo to develop to the 16-cell or blastocyst stage, it is then possible to take out a single cell from the part of the embryo that will produce the membranes of the placenta, preferably, and identify whether the gene responsible for that fatal progressive disease is present. If it is, we can allow the embryo to degenerate, as many do in the course of normal human fertilisation. If the gene is not present, we can implant it, thus allowing these women to have normal, unaffected babies.

That is the programme of testing embryos. My concern about the use of the phrase “embryological techniques” is that it embraces a much wider field of embryology, which is concerned with the whole process of development of the embryo into ultimately a foetus and so forth. I wonder whether that broadening, by the use of that particular phrase, is too great in this context.

However, it is important for individuals to be trained in the testing of embryos for the purposes that I mentioned and in the techniques of storing embryos. That is important, but I thought that I should mention the personal reservation that I have about the use of the phrase “embryological techniques”.

Perhaps this is the time I might be allowed to say that the document produced by the department showing how the 1990 Act might be amended by this Bill is one of the most useful that I have seen for a long time. If you attach it as a schedule to a Bill it is called a Keeling schedule. This is a large and extremely helpful Keeling schedule and I thank the department for making it available.

Because of that document, I wonder whether, with the greatest diffidence, I could express my doubt about what the noble Lord, Lord Walton, just said. One can look at Schedule 2 in this document and realise how the Bill will amend the original Schedule 2. The first section is headed “Licences for treatment” and the next section, which is introduced by this Bill, is headed “Embryo testing”. I say this with huge diffidence, but I am not sure that complaining about the words that the noble Baroness’s amendment would insert is necessarily correct. We will come on to embryo testing and I think that this licence, which allows the use of,

“embryos for the purpose of training persons in the testing of embryos”,

is in fact probably right. That is what this is about. I have some sympathy with what the mover of the amendment said, but I am not necessarily convinced that she is right. I say that with some hesitation.

I do not believe that I am making myself clear. The next section is concerned with pre-implantation diagnosis. But before you can carry out pre-implantation diagnosis, you have to have people trained in the testing. That is why I preferred the word “testing” to embryological studies, as proposed in the amendment. That was all I was trying to say.

I wonder whether I might put in a very brief word as I think that my laboratory invented pre-implantation diagnosis. We screened the first patient for Duchenne muscular dystrophy and published that work some years ago. I wonder whether this amendment is necessary. I have had many quarrels with the Human Fertilisation and Embryology Authority over the years, as is well documented, but I have never felt that its ability and effectiveness in making sure that people were properly trained in the various techniques involved in embryology were anything less than adequate. History has shown that it has been very careful in making sure that laboratories around this country have performed up to standard as regards all the techniques involved with embryos. On that basis I am not sure that a further amendment is justified.

I raise a slightly different point but I agree with the remarks that have just been made. To change the emphasis, as this amendment would, from the testing of embryos to techniques and embryo storage puts it the wrong way round. It takes the emphasis away from the human embryo and puts it on techniques. I would be unhappy about such a change for that reason. However, the noble Baroness raised an important point about embryo storage. What is the department doing to monitor the effects of long-term storage? Is there any empirical evidence, as has been suggested by some outside this place, that that can lead in turn to impairment and disability later?

I believe that there may have been some misunderstanding, which has resulted in this amendment—the misunderstanding being exactly what my professional friend Lord Winston described. The training that is required for any clinician to become a competent in vitro fertilisation clinician is normal process. It would include how to store gametes and embryos properly, how to handle them properly, how to identify good-quality embryos and how to make poor-quality embryos good quality by removing the fragment that reduces the chances of implantation. Those are normal training practices. The misunderstanding arises from the belief that this is not allowed under this legislation. I believe that is wrong. It does allow it. It does not include this normal training. The only thing that we are concerned about—that will be dealt with in the next amendment—is pre-implantation diagnosis testing. That testing requires one to have the expertise to carry out the biopsy to which the noble Lord, Lord Walton, referred. That is a completely different issue from that which this amendment is trying to cover. I thought there was a clear understanding that the reason this amendment is not required is that all these training issues are allowable as normal, good clinical training.

In my next life I am going to be a scientist.

Paragraph 2(2) of Schedule 2 to the Bill amends paragraph 1(1) of Schedule 2 to the 1990 Act, which lists what a licence may authorise in the course of providing treatment services. The Bill introduces an additional purpose for which embryos can be used under a treatment licence; that is, in the training of embryologists. The Bill specifies that this use in training is limited to techniques associated with the testing of embryos.

When embryo testing is carried out, a single cell or two cells are removed from embryos at the eight-cell stage. These cells are then tested and the embryo continues to develop. It is, of course, essential that embryologists should be able to practise the micromanipulation technique used in this process.

Further provisions in the Bill also ensure that embryos can be used for this purpose only where proper consent has been obtained from the people whose gametes were used to create the embryo and where the proposed use of embryos is necessary for that purpose. In practice, it is unlikely that a large number of embryos will be used in this way because only those embryos that are not suitable for treatment or storage will be used for this purpose. However, it is important that people should be able, if they so wish, to donate to the training of embryologists in order to benefit future patients those embryos that they do not require for their own treatment.

We are aware of other embryological techniques for which embryologists may wish to use embryos to practise. For example, there is vitrification, which is a technique for storage that requires a very precise process, as explained by the noble Baroness. Additionally, new techniques may be developed in the future that it would be beneficial for embryologists to practise. Training is of the utmost importance. To ensure that embryologists may be trained in techniques other than those associated with embryo testing, and for the sake of future-proofing the legislation in the event of techniques of which we are not yet aware, we were minded to consider the amendment further. However, clearly in doing so we must take into account the concerns that have been passionately expressed today by my noble friend Lord Winston and the noble Lord, Lord Alton. We will consider the amendment further, taking into account the strong views that they have expressed.

In response to the noble Lord, Lord Alton, on long-term research, the HFEA has a scientific and clinical advances group that monitors research, including safety studies in storage. I trust that the noble Baroness will feel able to withdraw the amendment.

I will comment just a little further. I accept the dilemma about which part of the Bill the amendment should fit into. Frankly, only the Bill team can decide that; I do not have the expertise to insist that it should go in one part of the Bill or the other.

The noble Lords, Lord Winston and Lord Patel, spoke very confidently about the training being absolutely fine and everything being wonderful.

That is how it came over. I would have said that a little humility was needed, in that training is never 100 per cent. We can never have enough training. There are seven centres where this takes place, which is not very many. I assure noble Lords that the backing for the amendment has come from many professionals; it is not just from the Liberal Democrat Benches, obviously.

I thought that there were six centres, but there might be seven. That refers to the training related to biopsy for pre-implantation genetic diagnosis. That requires training and it is necessary. The other aspects of training that I think are routine, good, clinical practice training should be allowable without having to be put in the Bill.

I have been through the mill of medical training, and I am sure that it is not like this now, but in my day many consultants and professors thought that the training and education that they gave us were absolutely wonderful and beyond reproach, when actually the students and the junior doctors did not share their view and would have liked much better training. I plead with noble Lords to retain a bit of humility and to look at this in the spirit in which it was intended—to broaden and deepen the training that people can acquire in these techniques.

Having had the assurance from the Minister that the Bill team and the department will look at the amendment, I beg leave to withdraw it at this stage.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

29: Schedule 2, page 55, line 16, leave out first “abnormality” and insert “characteristic”

The noble Baroness said: I hope that this is a much briefer subject. It is another probing amendment, and I do not speak in any sort of dogmatic way. In embryo testing and sex selection, we feel that “abnormality” in these clauses is too restrictive. My understanding—and I have no experience of this—is that the characteristics of some cells, including genetic features, would occur in an otherwise healthy individual. Such a characteristic might lead to a serious risk of physical and mental disability. The example that I was given was of the apoprotein, which, if carried, gives an individual or even a family a higher risk of dementia or Alzheimer’s disease.

The amendment is asking for information and for the Bill team to look at this carefully and ensure that, by using “abnormality”, we are not excluding characteristics that might lead to disease, even though things are not abnormal at the time. This is a difficult distinction and may be semantics to some people, but it is worth looking at and I would like the Minister and the team to comment on it. I beg to move.

I hope that we will think carefully before making this change. I am certain that it is not the intention of the noble Baroness or that of her noble friend who tabled the amendment to widen this debate to the area of characteristic selection, but I worry that if we change the words in the Bill, that is how it could be misrepresented outside your Lordships’ House. I am glad that the Bill unequivocally prohibits sex selection. We are absolutely right to do that. We have to guard against the mentality that can sometimes lead to wanting designer babies.

A very good new book, Everything Conceivable: How Assisted Reproduction is Changing Men, Women and the World, which the Librarian in your Lordships’ House made available to me, has just been published in America. Interestingly, it was written by a feminist, and I would not necessarily share all her conclusions; but she says that what she calls “yuppie eugenics” can lead to all sorts of pressures when people are tested. I fully accept that this is more likely to happen in the United States than here, but we should always guard against these things. In the book, she says, for instance, that one couple argue about what height their egg donor should be. Another provides a score list, based on looks, education, IQ and sporting interest. Clearly, those are not abnormalities but are characteristics. I hope that the Minister will tell us whether, if we were to change the words in the Bill, it might be open to that interpretation.

I am really concerned about this, because leaving out “abnormality” and inserting “characteristic” opens up a wide area. Characteristics of human beings include colour of the eyes, mental ability, physical ability, or whether they are tall, small, white or whatever. These are all characteristics. This amendment would create designer babies; nothing more, nothing less. We really have to avoid this. What are we doing? We are trying to play God once more. I hope that we are not going down that way.

My noble friend Lord Alton must be surprised to hear that on this occasion I agree with him, because he is right in saying that “characteristic” is too broad. The noble Baroness, Lady Tonge, can be reassured that a mutant gene that might predispose to the development of Alzheimer’s or any other disease could readily be called an abnormality. In that case, it is perfectly appropriate to leave the wording of the Bill as it is.

Embryo testing involves removing one or two cells of an embryo created in vitro at the eight-cell stage. The Bill introduces five principal purposes for which embryos can be tested. These are: to determine whether the embryo has a genetic, normally chromosomal, abnormality that would affect its ability to result in a pregnancy; to determine whether the embryo has inherited a gene or genes from one or both parents that will mean that any resulting child will have or develop a serious medical condition—this is pre-implantation genetic diagnosis, and is what the amendments tabled by the noble Baroness relate to—to determine the sex of the embryo where there is a particular risk that any resulting child will have or develop a gender-related serious medical condition; to determine the tissue type of the embryo where there is an older sibling with a serious medical condition that could be treated with umbilical cord blood, bone marrow or other tissue of the resulting child; and finally, in the event that there is uncertainty as to whose gametes were used to create the embryo.

The purpose to which the amendments in this group relate is in new paragraph 1ZA(1)(b). This allows embryo testing where there is an inherited condition in one or both parents that could be passed on to any resulting child. A further provision relates to this. New paragraph 1ZA(2) specifies the criteria that must be met in relation to the risk of the condition for which the embryo is being tested—for example, that it must be a significant risk that a person with the abnormality would have or develop a serious condition, disability or illness.

The Bill is drafted to describe the genetic alteration that would result in the medical condition as an “abnormality”. Amendments Nos. 29 to 31 and 36 to 38 change “abnormality” to “characteristic” every time it is mentioned. The effect would primarily be a drafting alteration. The same tests would have to be met, regardless of how the trait that causes any given condition is described. “Characteristic”, in the description of the purpose, would not necessarily indicate that there would be something medically wrong with anyone born with such a characteristic. It could be argued that “abnormality” might indicate that. However, new paragraph 1ZA(2) ensures that however the trait is described, embryo testing could be carried out only where the trait gives rise to a significant risk of a person having or developing a serious medical condition.

We appreciate that there may be concerns about the use of “abnormality” in this context—although I note also the concerns of other noble Lords in relation to “characteristic”. There are many different variations of genes and we all have slightly different versions. Some changes will have very little effect, whereas others will result in a serious medical condition. Because of the variation, it could be said to be difficult to say that there is one version of a gene and that this is normal. However, from a drafting point of view, “abnormality” was intended to be interpreted as being a change in the gene chromosome or mitochondria that would result in any particular medical condition being present.

The word proposed by the noble Baroness would not have the same issue associated with it as “abnormality”. It also still ensures that embryo testing for the purpose specified in new paragraph 1ZA(1)(b) could be carried out only where there was a significant risk that the genetic alteration—or characteristic—would result in a serious medical condition being present or developing in any child born as a result of treatment. Therefore, we will agree to consider further the amendments tabled.

Amendment No. 38A also relates to embryo testing where the embryo is at particular risk of inheriting a condition that could result in a medical condition—perhaps when the parents both have a faulty copy of the cystic fibrosis gene. The amendment relates to new paragraph 1ZA(1)(b) of Schedule 2 to the 1990 Act, and new paragraph 1ZA(2) specifies the criteria that must be met in relation to the risk of the condition for which the embryo is being tested—that there must be a significant risk of the child that results having or developing a serious condition, disability or illness. The amendment inserts “may” into this paragraph.

Some conditions that it might be desirable to test for are not fully penetrant. This means that if you inherit the abnormality or characteristic, you will not always develop the condition. Instead, you inherit an increased susceptibility to the condition. This is the case for some types of cancers that can be inherited—for example, some forms of breast and bowel cancer. The Bill would allow for conditions that are not fully penetrant to be tested for, subject to licence by the HFEA. To paraphrase, the Bill states that the inheritable abnormality must result in a significant risk that the condition which it causes is present or developing in the person born as a result of testing. Therefore, if the particular abnormality resulted in a serious condition in nine out of 10 people with that condition, this could be considered a significant risk. Amendment No. 38A would not necessarily open the scope for the authority to license more conditions, as there would still have to be a significant risk that the condition may develop. The amendment could add a level of uncertainty, which would not be desirable.

The noble Lord, Lord Alton, asked whether “characteristic” would include sporting ability. The answer is no—a characteristic would still need to satisfy the criteria leading to a serious medical condition. The noble Baroness, Lady Tonge, asked whether testing for apoprotein would be allowed. We note the comments on conditions caused by apoprotein and will look at this further in the context of the Bill.

I note the views expressed from all sides in this debate, specifically in relation to characteristics, and I am very glad that the amendment has brought together so many parts of the Committee. In view of that, I hope that the noble Baroness will feel able to withdraw the amendment—

It seemed that the line of the noble Baroness’s answer precisely did not draw together various corners of this Chamber. The more she spoke and the more she dealt with “may”, she increasingly edged away from the unity of view of the noble Lords, Lord Alton and Lord Walton, and towards the noble Baroness, Lady Tonge. I think that we need to know whether that is her position or whether she is as clear as the noble Lords, Lord Alton and Lord Walton, that this proposal is too permissive by three-quarters.

We said that we would be prepared to look further at Amendments Nos. 29 to 31 and 36 to 38, but made it absolutely clear that Amendment No. 38A would add undesirable uncertainty. However, we have agreed to look at this matter further and will take into consideration the very strong views expressed in all parts of the Committee, so the right reverend Prelate should feel reassured that we will not do anything about which he would feel desperately uneasy.

When I was first asked to move this amendment, my reaction was exactly that of the noble Lords, Lord Walton and Lord Alton, and the noble Baroness, Lady O’Cathain. Nevertheless, I thought that the Minister gave an excellent response. She clearly accepted all our concerns about children being selected for sporting ability, blue eyes or whatever. Obviously, that would be absolutely horrific and we do not want to go down that road. However, there is a point to be made here: some conditions may not be included in “abnormality”. None the less, I am entirely satisfied with the Minister’s response—it shows that the department has given a great deal of thought to this matter. I am grateful for that and am therefore happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 31 not moved.]

32: Schedule 2, page 55, leave out lines 27 to 34

The noble Lord said: There is a typographical error in Amendment No. 39. It says “Page 56, line 3” but should read “Page 56, line 30”.

The cumulative effect of Amendments Nos. 32, 32A, 33, 34, 39, 40 and 41 would be to block tissue typing for the purposes of selecting an embryo that is an immune match to an existing child, to prevent children being used for organ donation after tissue typing for any purpose, to prevent the law being extended to allow children to be created to be organ and tissue donors, to limit the circumstances in which the creation of children as organ donors can take place, and to make the creation of children as organ donors a procedure of last resort.

I was struck by the prescience and acuity of a comment in the 25 August edition of New Scientist. It is worth listening to an extract from the article in question:

“It is excellent news that parents in the UK will probably be allowed to have sibling saviours to save children with ‘serious’ rather than merely life-threatening diseases ... Perhaps legislators should now seize the opportunity not only to permit this far-sighted approach, but also to solve the donor organ crisis.

It should be possible to ensure that all children born to a couple are immunologically compatible so that, were one of the family to suffer a catastrophic organ failure, siblings would be on hand to provide another. Naturally, the elected saviour sibling would be required to provide the organ, although since the issue of consent does not arise with saviours at present, there is no need to suppose that this will be a problem in the future.

The scheme would, of course, work best for kidneys, as the saviours could rely on their spare to see them through; half a liver could also be donated without too much worry. A heart and/or lungs would be trickier, but it does not stretch the imagination to suppose that our brave scientists and legislators will be able to see a way around this inconvenience”.

Let us first dispose of the casuistry that saviour siblings are donors. There is clearly something of a contradiction in using the word “donor”, as a donor has to give consent, and that is manifestly impossible in what is proposed. Personal organ donation is often a generous and altruistic act, and many Members of your Lordships’ House will carry donor cards, but it is always an act freely entered into. It is an act of autonomy and personal choice but clearly a baby or a young child does not have any say in this momentous decision. Furthermore, reducing the present hurdle for permitting such an extraordinary presumption from “life-threatening” to “serious” conditions—which, as we know in another context, may mean a cleft palate or webbed fingers—should not be allowed to happen without deep and fundamental debate.

The Bill proposes that an embryo can be tested to see whether it is an immune match for an existing sibling if the existing child suffers from a serious medical condition which can be treated by,

“umbilical cord blood stem cells, bone marrow or other tissue of any resulting child”.

On 21 November, I asked the noble Lord, Lord Darzi, what the words “or other tissue” meant. He left the House in no doubt that it included organs, including organs from non-consenting children who are too young to give consent. He stated:

“The Bill does not limit which tissue can be used in the treatment of a sibling … and the Human Tissue Authority must approve any transplants involving organs from living donors and children who are too young to give consent”.—[Official Report, 21/11/07; col. 869.]

Therefore, if the embryo is found to be an immune match, it will be implanted deliberately to become a source of spare parts for an existing child—its sibling—even when it is too young to give consent.

My Amendment No. 32 goes to the heart of this matter. Many of your Lordships may not be too unhappy about permitting a child to be created to provide tissue from the umbilical cord, but the difficulty is that, once an embryo is tissue-typed and is known to be an immune match for an existing child, it will be available to provide any tissue or organ after birth, even if ostensibly it had been created only to provide umbilical cord blood. I shall say more about this later but I am proposing Amendment No. 32 in order to bring about a complete ban on tissue typing to produce a saviour sibling.

Amendment No. 32A deals with the issue of life-threatening conditions. The Bill proposes that a saviour sibling can be created to provide tissue and organs for diseases in an existing child that are not even life-threatening but merely serious. When the Minister was asked why the Government have changed the criterion from “life-threatening” to “serious”, he replied:

“The pre-legislative scrutiny committee recommended that the Bill should not be limited to life-threatening conditions but should also include serious conditions”.—[Official Report, 21/11/07; col. 869.]

As I said at Second Reading, autism has already been suggested by the chairman of the Joint Committee scrutinising the Bill as one of the disorders for which a saviour sibling could be treated to provide tissue. In an interview with the Daily Telegraph, he said that saviour siblings cannot currently be used to help children with autism but it was an example of the kind of serious condition that the committee believed should be tackled by the technique. It is hard to see what kind of tissue could help to overcome autism. However, if a child could be created to help with autism in an existing child, what else could be classified as serious? That is why I am proposing Amendment No. 32A.

In Amendments Nos. 33 and 34 I propose that saviour siblings may be created only to obtain umbilical cord blood and that the disease that these stem cells can be proposed to treat has to be capable of being treated effectively by umbilical cord blood. As the Bill stands, the term “treated by umbilical cord blood” is very open to interpretation. It would seem not to matter how effectively the cord blood, or indeed any tissue or organ, could help the existing sibling. As the Bill stands, even if there was only a small chance of success in treating the disease, the saviour sibling could be created. That also raises the issue that if a child is created ostensibly only for umbilical cord blood and if the umbilical cord blood was not effective in treating the disease, subsequently any tissue or organ could be used to treat the existing child to see whether that would be more effective. It would be known that the child was an immune match for the existing sibling, as it had undergone deliberate tissue typing as an embryo to ensure that it was an immune match. Therefore any tissue or organ would be compatible. Thus to those of your Lordships who are concerned about the use of any tissue other than umbilical cord blood, both limiting tissue typing of saviour siblings to obtain umbilical cord blood, and inserting the phrase “treated effectively”, should ensure that taking other tissues or organs after birth need not occur.

Amendment No. 40 would permit a saviour sibling to be made only if there is no alternative treatment available, including umbilical cord blood from other donors. Amendment No. 41 deals with offences relating to harming saviour siblings, or taking tissue from them. The first paragraph of Amendment No. 41 proposes that it would be a criminal offence to take organs or bone marrow from a saviour sibling, or to subject it to any intrusive medical procedure in order to treat the existing child. Sub-paragraph (5) in Amendment No. 41 proposes that it would be a criminal offence to take organs from a saviour sibling, while permitting the taking of bone marrow. Sub-paragraph (6) of Amendment No. 41 proposes that it would be a criminal offence to cause harm to a child through any intrusive medical intervention in order to treat the existing child.

Such amendments are necessary to avoid a saviour sibling being created ostensibly for umbilical cord blood, or for cord blood and bone marrow, but then used for organs or other tissues after birth. Using other organs would be possible if there are no safeguards in place, since it would have been implanted, following tissue typing, to be an immune match. I emphasise that this is not similar to using organs from a child created normally, or by IVF, without tissue typing. Saviour siblings are the result of deliberate intervention, involving an optional stage of tissue typing following IVF, to create a child to be a tissue or even organ donor for an existing child. The saviour sibling’s entire existence would be lived with the sentence of knowing that it had been created to be a tissue or organ donor.

As this Bill is currently drafted, we are being asked to legislate in favour of the creation of embryos whose tissue type is a match for a sick sibling. The intention is to carry such embryos through pregnancy in order to harvest the cord blood or bone marrow or other tissues—perhaps a liver or kidney; who knows?—later on in an attempt to cure the child already in existence.

Any parent who has had a sick child—most of us in this House will have been in that position at some time—and certainly any parent caring for a seriously ill child will understandably search desperately for cures, and nothing is more likely to evoke compassion in the hearts of the nation than a plea for help from such parents. We do have a duty as a caring society to offer the services of the very best medicine, and to continue the search for new and successful cures. Medicine, however, cannot function in a moral vacuum and many ethical considerations need to be taken on board, even when dealing with relatively simple issues, let alone a dilemma as complex as this one.

At first instance, this may well seem an heroic solution, an acceptable way to cure a seriously ill child. On the other hand, we may have a gut feeling that something is not right about this procedure. Gut feelings are absolutely valid and often represent the greatest wisdom. Our compassion for the welfare of existing sick children does not legitimise a trade-off with our legal responsibilities for the welfare of children, including those created by assisted reproduction. There is no reason why criminal law prohibitions on battery or abusive behaviour towards children should not apply as much to children created by IVF as to everybody else. In the current legal realm, how could any invasive medical intervention performed on a child not for its own benefit, when it could not possibly give consent, not be argued in law to be an assault against the bodily integrity and right to autonomy of that innocent child?

No child should be created specifically for the benefit of a third party, no matter how pressing the anguish of the parents. That is the absolute principle at stake here, but it must also be added that the therapeutic benefits of creating tissue-matching babies have been inaccurately portrayed to the public as an easy procedure with guaranteed success. It is also usually argued that this is the only, or ideal, therapeutic route. In reality, the chances of the matching baby being created successfully are limited. IVF has a low success rate. Pregnancies do not always go to term. There is no guarantee, even in the case simply of cord blood, that there will be sufficient blood harvested, or that any subsequent transplant will be successful.

The medical team awaiting the birth of a tissue-matching child to provide therapy is placed in an unenviable position, with a significant risk that best practice in pregnancy may be hijacked by the interests of the sick sibling. Worsening of the sick child could inspire thoughts of provoking a premature delivery. Such a response has already been recorded. What if the cord is around the neck of the new baby and needs to be sacrificed in the interests of good obstetric practice? Another reality is that, in order to create the matching baby, many unwanted embryos will be discarded in the process, including those diagnosed as carrying genetic disease and those who are disease-free. It is very much a hit or miss technology and it is criticised for some of the eugenics practices associated with embryo selection in the first place.

And what happens if the donation is not successful or—a rare but real likelihood—if the donation itself causes the death of the recipient, or the recipient dies anyway? Sadly, even when the tissue matches come from uncontentious sources—cord blood banks, unrelated donors and so on—the recipient is not always cured. What burden will that place on the designed baby? It is often recorded that children feel an irrational responsibility for the death of their parents or siblings. The psychological burden put on a tissue-matching child must not be dismissed in a rose-coloured enthusiasm for the benefits that might accrue to a third party. When the Minister replies, perhaps she will say what research has been done on the psychological impact of being a saviour sibling.

Are there any other ways to provide the cures in question? Thankfully, yes, and there is a middle ground here, to which the Committee should give deep and serious consideration, especially between now and Report. The lottery of trying to design a saviour sibling is a lengthy and unreliable process at best, making it immensely impractical and never likely to be universally practised. Instead, we should explore less controversial routes to the desired cures and, in particular, we should support the collection of stem cells from cord blood and invest seriously in this non-controversial and exciting source of transplant material.

Colin McGuckin, the professor of regenerative medicine at Newcastle University, in evidence submitted to the Joint Committee on the Human Tissue and Embryos (Draft) Bill, said:

“Cord blood stem cells, which we specialise in, already treat 85 clinical diseases”.

But it was said in a meeting that I organised in the Moses Room of your Lordships’ House by Dr Peter Hollands, a senior scientist specialising in this area, that 98 per cent of cord blood produced in this country is routinely destroyed. There are, I understand—no doubt the Minister will correct me if I am wrong—only four NHS facilities in this country at the moment that do that collection. Contrast that with the situation in the United States. If we were to store the cord blood from every baby born in this country, we would have a bank of stem cells of infinite value, and if this was practised internationally on the largest possible scale, the therapeutic potential would be extraordinary.

I interrupt my noble friend for one moment to say that there is now a major project under way, funded by the Wellcome Trust and the Medical Research Council and others, to produce a cord blood bank in the United Kingdom, which I think will be immensely valuable.

I am very grateful for the intervention of my noble friend. I know that he has been personally involved in that project and I am delighted that it is under way. That is a very worthwhile step forward. Nevertheless, I think he would accept that at the moment, for us to destroy 98 per cent of cord blood, and to have only four NHS facilities routinely collecting it, is not a satisfactory situation.

It takes a speedy 24 hours to send cord blood stem cell transplant material from one country to another. That is the right way forward—not the unethical practice of designing babies as tissue donors. I beg to move.

I advise the Committee that if this amendment is agreed to, I am unable to call Amendments No. 32A to 35 inclusive, or Amendments Nos. 39 to 41.

The noble Lord, Lord Alton, has set out a range of concerns about these provisions. While I cannot support him on all of them, I join him in expressing a considerable degree of worry about the idea of using a saviour sibling as a source of organs for transplantation. That is the subject of Amendment No. 35.

The whole concept of a saviour sibling lies on the borders of ethical acceptability. The idea of creating a particular child as a means to someone else’s ends devalues that person as an individual. Nor should we ignore the psychological effect that this knowledge may have on the person in later life, something to which the noble Lord rightly drew our attention. Many of us are prepared to reconcile ourselves to the notion of the saviour sibling because of the benefit brought to the other sibling, who would otherwise suffer or die. We are also willing to accept the process because the donation of cord blood does no harm to the donor sibling. Some of us—I am one—are willing to go further and countenance the donation of regenerative tissue such as bone marrow on the ground that, although invasive to the donor, the procedure should not, in normal circumstances, result in lasting harm. However, the donation of an organ, which is what the phrase “or other tissue” implies, is of a different order altogether. Organ donation results in lasting harm. While I have no objection to an adult taking an informed and voluntary decision to sacrifice a kidney, for example, to save the life of a close relation, it does not seem to me that the state has any right to raid the body of a child for any part of him that will not naturally regenerate.

The state is centre-stage here. As I understand it, if there is ever a question of a child donating tissue, the Human Tissue Authority is legally charged with taking that decision under the 2006 regulations. Of course, it must do so on the basis of the common law test of “best interests”, but “best interests” is a concept capable of being interpreted quite broadly. During the passage of the Human Tissue Bill, the noble Baroness, Lady Andrews, said:

“The noble Lord made several points regarding best interests … We would argue that consent may well be in the best interests of a person lacking mental capacity if a carer or relative on whom they are dependent is in need of a transplant or other procedure requiring the use of their tissue, and without which the carer may be in danger of dying and, therefore, not in a position to take care of the person. That is not a far-fetched instance”.—[Official Report, 16/9/04; col. GC 469.]

Those words worried me at the time, and they still worry me. I should make it clear that the context of that debate was the power given to the Secretary of State over the storage and use of tissue taken from individuals who lacked mental capacity. It was not a debate about the powers given to the Human Tissue Authority to determine issues about the removal of tissue for transplant. Nevertheless, the point that I seek to emphasise is the broad way in which the expression “best interests” is capable of being interpreted.

I may be wrong, but I do not believe that, when the members of the Joint Committee considered saviour siblings and tissue typing, they had in their mind anything other than the donation of cord blood and bone marrow. I am not happy with the Bill as worded here. I would be much happier if the phrase “or other tissue” were qualified so as to make it clear that it was confined to regenerative tissue.

If this part of the Bill were to go through unamended, I would worry greatly that it would give the green light to the HFEA and clinicians to sanction the creation of saviour siblings for the explicit purpose of whole-organ transplantation. While such a decision in itself would not tie the hands of the Human Tissue Authority later on, it might well create a momentum and pressure that the HTA would find hard to resist. I hope very much that the Minister will agree to look again at the wording of this part of the schedule.

I intervene for the first time in these proceedings to support the amendments tabled by my noble friend Lord Alton. It is always important that any legislation should be as precise as is reasonably possible. That is especially so when one is dealing with a subject as sensitive as human embryology, on which reasonable people can, as we have learnt at Second Reading and again yesterday, take very different views.

“Life-threatening disease”—the language we heard—was something that we could all understand. I imagine that it would not be too difficult to make a list of life-threatening diseases on which doctors could agree. Why, then, are we changing from “life-threatening disease”? I am of course aware that the Joint Committee took the view that “life-threatening disease” was too narrow, too tight. I understand its reasons and largely sympathise with them, but I cannot accept that “serious medical condition” was the right substitute. We seem to have gone from one extreme—too narrow—to the other, which is far too vague and too wide. It could cover almost anything. I have serious concerns about “serious medical disease” being the right terminology.

However, I have much greater concerns—they were set out so clearly by the noble Earl—about the inclusion of the phrase “other tissue” in sub-paragraph 1(d). Umbilical cord stem cells are again something that we can all understand. The Joint Committee’s recommendation 17 did not suggest any change. It was the Government’s idea to include “bone marrow” and, certainly, “other tissue”, which presumably means any other tissue. That means that “umbilical cord” and “bone marrow” become otiose, but I shall put that lawyer’s point on one side.

As with “serious medical condition”, surely “other tissue” is much too vague? I have read a paper in which it is said that “other tissue” would certainly include organs such as the human kidney. I hope that that is not the Government’s intention, but if it is that raises serious questions. Following the noble Earl as well as my noble friend, I would have great doubts about the morality of creating a child for the specific purpose of donating a kidney to an elder sibling. I would have even greater concern for the effect on the child when he discovers that that is one of the reasons why he has been brought into the world. How, in those circumstances, could we ever be sure that he was donating the kidney truly voluntarily? This is the first time I have intervened in these debates, but we are on very dangerous ground.

I am grateful to the noble Lord and noble Earl for raising these issues. There is clearly widespread concern. The issue has vexed the HFEA now for a good number of years. Some years ago, we approved one application for a saviour sibling for a genetically inheritable disease. Then, we had another application for a disease in a sibling who was not genetic; we turned it down and then reconsidered it. It went backwards and forwards between the ethics and law committee and the HFEA. I say this to indicate to the noble Lord, Lord Alton, that the HFEA gives serious ethical consideration to these issues. However, I am glad that he and the noble Earl have raised the issue because I share a lot of their concerns.

We need greater clarity from the Minister about what is meant by “or other tissue”, as the noble and learned Lord, Lord Lloyd, emphasised. We also need much greater clarity about what is meant by “serious”, if we are not going to use the phrase “life-threatening”. As was said, the phrase “life-threatening” is reasonably clear.

The main point that I want to make is slightly to dispel the impression made by the noble Lord, Lord Alton. All Members of this Committee would agree with the Kantian principle that we should never treat any other human being simply as a means to an end. That is fundamental to any ethical view. However, a woman who is having a baby in this situation probably has a range of motives. She is very unlikely to want to have another child purely for the purpose of helping a sick sibling. Her motives are much more likely to be mixed: a bit of one and a bit of the other. Quite a significant part of her will want another child for its own sake.

The psychological effect on the baby who will be born has been mentioned. The noble Lord, Lord Alton, said that for the rest of its life it would be hanging over it that it had been brought into this world simply for another person. I suggest that the psychological effect could be the opposite: if as the result of the child’s bone marrow a child who was dying is alive, that would surely enhance the sense of the preciousness and value of that child and the gratitude for it within the family. If we suppose that the child had died and the parents had a new child because there was a gap in the family, what would the psychological effect of that be? The psychological effect—this is an unknown, and we are only speculating—is more ambiguous and could be much more positive than the noble Lord suggested.

Overall, I am glad that the noble Lord and the noble Earl raised the matter. There are questions about the Bill, and it will probably have to be amended.

I shall make two points, but as a preface to them I shall say that I strongly support the amendment tabled by the noble Lord, Lord Alton of Liverpool, and I was greatly taken by the arguments used by my noble friend Lord Howe in his lucid exposé of the dilemmas that face us when legislating in this area.

My first point is that this place should legislate only about those things that we can define. It is not that I distrust the courts of the future to help Parliament out or that I am fearful about what some future agency might do, helped on by regulation, to alter things. However, during yesterday’s Committee we had a good example of this. The noble Lord, Lord Darzi, who is in his place, explained that it is very difficult for some of the greatest figures in the medical world to agree a definition of an interspecies embryo. He read out a letter about that. That made me very uneasy because we were discussing legislating about something that the greatest medical brains in the country could not define. Today, the noble Lord, Lord Alton, has brought to the attention of the Committee saviour siblings and the misuse of the word “donor”. A saviour sibling cannot, by definition, be a donor so as presently drafted the Bill uses highly inexact language. I fear that we shall have to struggle with these fiendishly difficult matters of definition if we are to proceed usefully in this Committee and if great trouble is not to be caused on Report.

My second point is the noble Lord, Lord Alton, is right to say that medicine cannot and should not proceed in a moral vacuum. That point was also strongly made by my noble friend Lord Howe. He referred to the borderlands, the uneasy frontier land, between what is ethical and what is not. This cannot be a morality-free zone. For fear that noble Lords may think that I am speaking from a draft helpfully provided by the Roman curia, I have a number of friends who I would describe—one in particular—as high-church atheists. They strongly disbelieve in religion, but they also feel strongly about the moral impropriety of these steps and about going over the frontiers that my noble friend Lord Howe so accurately described.

I am grateful for the speeches we have heard, in particular, for those of the noble Lord, Lord Alton, and the noble Earl, Lord Howe. I want to go the whole way with the noble Lord, Lord Alton, in his amendments. I regret not being able to be present at Second Reading or yesterday, but that has given me the opportunity of reading the Second Reading debate, yesterday’s debate and the preparatory material all at one go. That prepared me to speak now.

I am not convinced by my friend the noble and right reverend Lord, Lord Harries, who turned the question about instrumentality upside down. That seemed not subtler than I could follow but subtler than is acceptable, but he and I have found ourselves in that position before and he will not be surprised at that reaction.

On asking the Government for clarity about “other tissue”, it seems to me that the phrase is precisely designed not to be clear but to be broadly inclusive. I should be surprised if the Minister is able to offer us any clarity about it.

The noble Lord, Lord Alton, spoke about gut feelings. I want to put those into words, as the noble Lord, Lord Alton, would have been able to do, but he had much else to say. Those gut feelings are very widely held. Noble Lords will, like me, have had a lot correspondence on this issue and will know that this is one of the points on which gut feelings have been widely expressed. The view held by the high-church atheists mentioned by the noble Lord, Lord Patten, is widely held whether by those of Christian or other faiths or none, but I shall put it in Christian terms.

At least from the implantation of a fertilised embryo we are a unique character for others, for society, for our maturing, enjoyment and fulfilment, and for God. We grow into the fullness of that unique character in the context of our parents, which is relevant to some of the later clauses in the Bill about fathers, and then under an ever-widening range of influences throughout our lives and, I should say, beyond. It is an archetypal human right that we are that unique character for those purposes. It is our responsibility first as parents to defend that right around our children and for them, then it is society’s responsibility to do so and society, in this context, includes Parliament and the medical professions. If that picture of what it is to be human and of humankind’s responsibility for human individuals is valid, the picture of saviour siblings as imagined in the aspects of the Bill that the noble Lord, Lord Alton, is seeking to remove, or to amend if removal fails, is fundamentally at odds with the picture I have painted.

Enabling the collusion of parents—whom I have suggested have major responsibilities to defend and succour the growth of the infant into maturity—in making this individual an instrument, making legal the engagement of the medical professions in such a creation of instrumentality and the lack of choice in being a donor but being an instrument, is a fundamentally serious thing to be doing, and, in my judgment, a wrong thing to be doing. I say that understanding, to the extent that outside the situation one can understand it, the urgent desire of parents with a desperately, chronically, perhaps even terminally sick child to find any means of approaching this situation, and the perfectly respectable and laudable wish of clinicians, if they may possibly, to assist them to do it. It still seems to me that Parliament would be wrong to allow that. For that reason I support the amendment of the noble Lord, Lord Alton.

Before the right reverend Prelate sits down, can he help me? I am now confused between the concept of instrumentality on the one hand and the issue of consent on the other. I gather from the right reverend Prelate that he is opposed to a second child being conceived through IVF in such a way through screening that that second infant is known to be compatible and therefore in a position to donate an organ or whatever. The right relevant Prelate has said that however much loved the child may be by its parent and however much that parent might have wanted a second child in any case, none the less, turning that child instrumentally into a means to an end is somehow degrading to human dignity.

There is a second issue of consent. What would be the right reverend Prelate’s advice to us were that first child to become ill after that second child was born and it so happened that there was a fortuitous tissue match and that that first child would survive only if the one year-old’s or the two year-old's kidney was removed without that small child being able to give consent to save the life of the first? Does the right reverend Prelate think that both those circumstances are identical? Does he think there is less instrumentality about the second because it is about chance?

The noble Baroness's second example is where the noble Lord’s later amendments come into play. It is entirely one thing for somebody as an adult and in a position to choose to offer some part of themselves for a sibling or a close relative, but quite another for an organ to be removed from a two year-old, which was the example she mentioned, for that purpose. A two year-old clearly is not in a position to give consent or to judge the risks involved. That would be the same whether or not there had been the intention to create this child so that it could do that.

I have already spoken about the intention to create and I have said that I am not convinced by the turning upside down by the noble and right reverend Lord, Lord Harries, of the argument of the noble Lord, Lord Alton, and, by implication, of my argument. The noble Baroness’s second point runs straight into the later set of amendments which would make such removal of organs from a child for another’s good a criminal offence.

No other field has been as extensively analysed by the lawyers as well as by the ethicists. The noble and learned Law Lords of this House gave a judgment in the case of the Hashmi family, who were the first family to be granted permission by the HFEA. Their little son Zain suffered from beta thalassemia major, which might be cured by umbilical cord blood. The HFEA gave permission and was roundly condemned. When it subsequently refused permission in the case of the Whitakers, where diamond blackfan anaemia was at issue, it was again roundly condemned.

The Law Lords gave judgment in the case of Hashmi and found that the procedure was legal and, I believe, ethical. The trouble lies in the Human Tissue Act. It has been said in many quarters that it is a pity that amendments are not being made to the Human Tissue Act on this occasion. Until very recently there would have been no question of a donation from a child who did not have the capacity to consent unless that child was made a ward of court. The judges would consider the case and most likely not give their permission. The fault lies, if there is one, in this new law that the HTA should be giving permission in these cases.

The Law Lords regarded it as legal for umbilical cord blood to be used, although in fact the Hashmis never succeeded in becoming pregnant. The lady in the case did have a child naturally, but that child was not a matching sibling. There is only a one in 16 chance of finding an embryo that is free of the disease and is capable of developing into a saviour sibling. In other words, the law is very narrow indeed. The fault lies, if I have it right, in the removal of the wardship jurisdiction which would protect a child who did not have the capacity of consenting to have an organ taken.

As to “means to an end”, I am sure that Members of the Committee will agree that no one should be used as a means to an end, but until the dawn of the age of contraception very recently there could be no question as to whether there was a good or a bad reason to have a child. People had babies because they came along, maybe to till the land, to inherit a title indeed, or for whatever reason, and there is no question but that parents are likely to love that saviour sibling very much indeed because they have gone to enormous lengths to have it. The Law Lords have been on the side of this procedure. The fault lies in the way that permission might be given in relation to any tissue other than the umbilical cord.

Before my noble friend sits down, perhaps I may ask her a question because of her knowledge in this area. She is quite right. Without the ability to amend the human tissue regulations, which was of course originally part of the purpose of this Bill when it was first presented, we are not able to lay a statutory duty in the context of things like the routine collection of cord blood. Rather more importantly, and on the point she has just made, will she clarify what are the best interest regulations inside the Human Tissue Authority’s code of practice and confirm that they extend way beyond the medical questions to psychological, social and emotional issues? If we incorporate those into these tests that will obviously be a wide area indeed on which to make these judgments.

I am sorry to say that I am not as familiar as I clearly should be with the definition there, but there are legal definitions of “best interests”. In my view, looking back at decisions made in the past, it is very unlikely that a court would give permission for a major organ to be removed from a small child. At least that was the case in the past; the Human Tissue Act is new.

In the discussion of a person being born as a means to an end or treating anyone as a means to an end, the most egregious example of that was the Diane Blood case where sperm was taken from a dying and then a dead man. There are provisions in this Bill which would continue to prevent any such thing, but that is the area to be careful of.

I rise to speak to Amendment No. 35A in the name of my noble friend Lady Barker. I wish I had done this earlier in the debate but I could not somehow get in. Before I do so, I should like to make some brief comments on the debate as it has evolved so far.

To complain that “serious” should not replace “life threatening” is quibbling because surely a serious condition is one which could become life threatening if not treated. Therefore, it would be better to treat it when it is serious rather than life threatening. I really do not understand that amendment. I take a similar view on the amendment about effective treatment. Who knows whether a treatment is going to be effective before it takes place? You hope that the patient will be treated effectively, but you cannot guarantee it.

None of us seems to have any qualms about the use of cord blood from saviour siblings—as we may call them. Having done many bone marrow punctures in my junior doctoring days, I do not have any qualms about bone marrow being used either, but I support the noble Earl, Lord Howe, and the noble Lord, Lord Alton, in their amendment to the phrase “other tissue”. That phrase is very worrying. The Minister needs to explain that. We have heard that it could be interpreted to mean that the organ—a kidney, say—of the saviour sibling could be removed. We have been assured by the noble Baroness, Lady Deech, that that could not occur under the Human Tissue Act. I suggest, moreover, that it could not occur because the mother who, once the baby is born, bonds with it, whatever was the reason for its birth, and loves her children equally, would have great difficulty in going one step further to save the first child.

May I make a small correction? I am not sure what would be the procedure under the Human Tissue Act. I do not believe that it is right for the Human Tissue Authority to be giving that permission. It would be better if we had the old system, whereby a child was made a ward of court and the judges gave permission. I do not know how the Human Tissue Authority would approach that.

I thank the noble Baroness for that intervention. It is something that all of us on all sides of the argument in these debates are clearly extremely concerned about, and it needs to be clarified by the Minister in her summing up.

Amendment No. 35A states:

“in a case where a person (the parent) who is one of the persons whose gametes are to be used to bring about the creation of an embryo suffers from a life threatening condition which could be treated by umbilical cord blood stem cells of any resulting child, establishing whether the tissue of any resulting child would be compatible with that of the person”.

In other words, this is a probing amendment to see whether it would be possible—whether the Committee thinks that it would be feasible—for cord blood stem cells to be used to save the life of the parent, perhaps, should they be compatible with the saviour sibling. We need to consider that. If we are doing it for children, why not do it also for the carer of those children?

As I said, it is a probing amendment. We need to hear the Minister's response to see whether the Government will consider it. I look forward to her comments.

I do not intend to make a lengthy speech on this very difficult issue, which bristles with scientific, medical, ethical and social problems, not all of them easy of solution. Speaking entirely personally, I have a great deal of sympathy with the view expressed by the noble Earl, Lord Howe. The idea of creating a so-called saviour sibling to produce an individual who could then be used as a source of human organs—such as a liver or kidneys—fills me with considerable concern.

Having said that, speaking now as an honorary fellow of the Royal College of Paediatrics and Child Health, I am fully aware that a number of serious, life-threatening disorders—I prefer the term “life-threatening” to “serious”, because it is crucial that something of this nature could be used only for the amelioration of conditions that are life threatening— which are genetically determined and occur in infants, are progressive and utterly devastating in their effects. One such is the X-linked disorder called adrenoleucodystrophy, which produces progressive paralysis, fits and a whole lot of other things in young infants. There is evidence to suggest that if that disease exists in a family and is diagnosed early, it is possible—in that condition and in some of the other metabolic and storage disorders of young infants, if we could obtain immunologically compatible bone marrow and transplant it—significantly to ameliorate the condition. In certain instances, there are other conditions in which that could produce a cure.

For that reason, I certainly agree with the noble Earl, Lord Howe, that bone marrow must remain covered by the clause. I entirely understand why he wants to remove the words “other tissue”, but let me postulate something for the future. My personal interest is in research into muscle disease. A number of genetically determined muscular dystrophies exist that are the rare congenital dystrophies present from birth which are the result of abnormal genes. Muscle is a regenerative tissue; it has an enormous ability to regenerate. It is perhaps theoretically possible that one could remove with a needle a small amount of muscle from an individual, culture it and derive from it stem cells that could be used in treatment of the human disease. I am talking purely hypothetically, but I think that to have the term “other tissue” ruled out completely might in the ultimate be very restrictive. The noble Earl himself used the term “regenerative tissue”. That may be a satisfactory alternative.

I agree with the noble Earl and with my noble friend Lord Alton about the concern expressed around the Committee about the creation of a sibling as a source for organ donation.

I first echo support for my noble friend on the Front Bench and for the noble Lord, Lord Alton, in what he is trying to achieve. Secondly, we will clearly have amendments tabled to the Human Tissue Act at Report—

We cannot? In that case, I withdraw that sentence.

The principal concern is the legislation to allow tests of an embryo to take place before implantation to discover whether it will be compatible with a sibling or other person. The noble and right reverend Lord, Lord Harries, said that there would be mixed motives in the generation of such a child and that we should remember the emotions of a mother—the parents—who might want a child whether or not it was compatible.

If the child was compatible and the emotions— the motives—were mixed, the embryo would be implanted and might go to full term. If it was not compatible, the question then arises: what would happen to the embryo? If the mother and father wanted a child anyway, the child would again be implanted and would hopefully go to full term. What is exercising us, as much as the question of the use of a child as something from which to harvest organs—which is a repulsive idea—is the idea that if the child was not compatible, the embryo would be destroyed.

There are three courses, are there not? There is the compatible child, when all that is wanted is a compatible child, which goes to full term; there is the incompatible child that is not wanted for other purposes, which is destroyed; and there is the one for which there are two motives for generation, which also goes to full term. I merely wanted to draw to the Committee's attention the fact that the purpose of the part of the Bill that the noble Lord, Lord Alton, wants to remove is in part to identify embryos for destruction.

Very briefly, I wonder whether I might, without causing too many jitters on my Front Bench, throw a tiny embryological spanner into the works. Perhaps the noble Baroness, Lady Deech, will correct me if I am wrong, but so far, in practice, most of these diagnostic procedures, which are very rare—they have been done only a very few times—have usually been done in collaboration with other countries, for example in the United States where tissue-typing or a gene-specific diagnosis has been made by a pre-implantation diagnosis overseas. How would that be covered by British law under the Bill if it was passed? Should that be considered, because it seems to be quite relevant to our discussions?

As I have said before, we live in a world of freedom of mobility. There is nothing to stop anyone going abroad to have a procedure that is limited or prohibited here. Indeed, the HFEA refused the Whitakers permission to have such a procedure. I understand that they had the procedure in the United States and it was successful. We have no control in that sense, but we live in a world of globalisation so far as IVF and embryology go, as the noble Lord, Lord Winston, knows only too well. All we can do is to set standards in this country and do what we can to counsel people. If we get the law right, we can rely on the judges to uphold and protect it, but only of course within the boundaries of this country.

In the light of the debate, I have reread a bit of the Joint Committee’s report and the evidence on which we made our recommendation that we should substitute “serious” illness for “life-threatening” illness. The argument has been that “life-threatening” was very restrictive and that you could have an elder child—no doubt the noble Lord, Lord Walton, could give us many examples of this—who was bound to live an extremely restricted life as the result of disease but who would not actually die prematurely. We came to the conclusion that it really would be unduly restrictive to refuse permission for a saviour sibling to be used in those circumstances. We based this on the evidence of two distinguished academics, Professor Sheldon and Professor Wilkinson. If anyone wants to read it, it is in their memorandum at pages 454 and 455 of the evidence. Even in the light of this discussion, I would draw the same conclusion reached by the Joint Committee.

The report says, however, that,

“we do not understand why the practice is limited to ‘life-threatening’ conditions capable of treatment using umbilical cord blood stem cells”.

Our evidence was that the phrase,

“using umbilical cord blood stem cells”,

was intended to be restrictive and to create a limitation, so that you could not have a saviour sibling for the purpose of harvesting a kidney or anything else.

I listened to my noble friend Lord Howe speaking to the amendment in his name and that of the noble Lord, Lord Alton, and I do not think for one moment that the Joint Committee would have contemplated a saviour sibling being used for that purpose. I yield to the noble Lord, Lord Alton, who referred to the recommendation, but I do not think that that is what we meant or that I would have agreed to that if it were. I like the idea of regenerative tissue. Bone marrow is a very good case in point. Of course it is regenerative, and there may well be others, but that is what it should be limited to, and I very much hope that we may come back to this on Report and put it into the Bill. I wish to retain “serious” illness and not restrict this to “life-threatening” illness.

I have one other thought. There is a huge difference between the conduct of a joint pre-legislative committee, which we had, and the importance of a debate such as the one that we have had this afternoon. Both serve their purpose, but the pre-legislative committee can never be a substitute for debate in the House.

I am very grateful to the noble Lord, Lord Jenkin of Roding, for his interpretation of and personal feelings about this. I suspect that he will have seen the interview with Mr Phil Willis, the Chairman of the Joint Committee, and heard the quotation about autism which I cited from it. I am certain that that does not reflect his view, but he will see how, given that interview and its publication, there could certainly be concerns that “serious” can be interpreted very differently from the example that he has just given.

I expressed at Second Reading my admiration for the way in which Phil Willis chaired our committee, but I do not agree with everything that he said, which he recognises. No one could be happier than me if the position could be resolved by an amendment to the Human Tissue Act, because, as I explained in my Second Reading speech, I am advised by the House authorities that it is outwith the scope of the Bill and so cannot be done.

I, too, was a member of the scrutiny committee, and I was always unhappy about this definition and the difference between “serious” and “life-threatening”. I take a different view from that of the noble Lord, Lord Jenkin. The definition of a life-threatening disorder can be extremely wide. We face in this country the possible threat of a bird flu epidemic that might kill people. Influenza is a life-threatening disease that has killed many thousands of people in the United Kingdom in the past century. The definition of “life-threatening” is very broad and in many ways is preferable to “serious”, which is open to all sorts of interpretations and is much looser. “Life-threatening” is a better definition and would cover genetic diseases.

I see the noble Lord smiling, so let me give an example. One genetic disease that could be classed as serious but is certainly not life-threatening is colour blindness. I think most of your Lordships would agree that it would be rather unjustified under the purposes of the Bill to screen an embryo for colour blindness, but it might be a serious condition under this vague definition. It is certainly not life-threatening.

The noble Lord knows far more about this than I do, but, with the greatest respect, he has taken rather a strange example. I would not for one moment have regarded colour blindness as a serious illness. It may damage the person’s enjoyment of life in a number of ways, but it is not serious. I hear what he says and I will listen to any future argument on this, but I thought that we were justified in widening the definition. I think that we saw the definition of “life-threatening” illness as much narrower than the slightly broader definition of “serious” illness. That was the weight of the evidence from the two witnesses whose names I have mentioned.

It is always difficult to know exactly what one thought earlier in our consideration of these things. I felt, as I think the Committee as a whole did—probably including the noble Lord, Lord Winston, at the time—that “life-threatening” had in it the idea of a condition that would certainly be very apt to shorten the life of the child in question. This was not quite broad enough to cover a situation in which a disease might accompany a person throughout their life, having a very detrimental effect on it and restricting it without shortening it. We substituted “serious”, which the noble and learned Lord, Lord Lloyd of Berwick, criticises. I would be extremely glad to hear his suggestion of what should go in its place. No doubt I will have the opportunity to do that in due course. This is not an easy matter. I think that we in the Joint Committee were all of the view that this had to be pretty weighty. One does not do this kind of thing for trivial reasons. It has to be for some pretty important reason. For the reason I have explained, we felt that “life-threatening” fell short of the possibility of allowing the consideration of illnesses which might continue for the whole of life yet be extremely restrictive on that life.

If “or other tissue” means more than umbilical cord blood stem cells and bone marrow and is an additional phrase, the paragraph will, in effect, amend the Human Tissue Act by giving a power which, until the Bill comes along, will not exist in respect of a saviour sibling. If that is correct, the House authorities may want to reconsider whether the Human Tissue Act is brought into this Bill sufficiently to enable my noble friend Lord Jenkin of Roding and the Joint Committee as a whole to succeed in their wish to have that Act seriously amended, to deal with the difficulties that the Royal College of Pathologists has identified in its working. If that is right, this may be a way of handling it. This thought occurred to me in the course of the discussion.

We, or certainly I, felt that allowing a testing for the purpose of seeing whether an embryo might be beneficial to another member of the family—I suppose the purpose of such a test is to select an embryo—was something the authority should have the power to license.

The screening and selection of embryos for the purpose of providing stem cells to treat a seriously ill child—so-called saviour siblings—is one of the most emotive issues in this controversial field, as we have learnt today. At the outset I should say to the noble Lord, Lord Alton, that I was deeply disturbed, as I am sure were other noble Lords, to hear the views expressed in the New Scientist in relation to saviour siblings and organ donations.

The HFEA currently licenses on a case-by-case basis the screening of embryos where the intention is that the resulting baby’s umbilical cord stem cells or bone marrow stem cells will be used to treat an existing sibling who has a life-threatening or serious illness. The Bill clarifies the scope of the HFEA to make such decisions. As the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Deech, informed us, these discussions are not made in a moral vacuum.

Amendment No. 32 specifically removes the tissue- typing purpose so that it would not be possible to license embryo testing to find out the tissue type of an embryo. When embryo testing was first introduced there were concerns that removing cells from the embryo for testing would have an effect on the health of any resulting children. Although children born as a result of embryo testing are not yet adults, from the thousands of children born following embryo testing there is no such evidence of harm.

In contrast, the benefits offered by tissue typing are considerable. The Bill allows potentially life-saving treatments to be offered for children who are affected by serious medical conditions. In practice, tissue typing is only ever considered when all other options are exhausted—in other words, when there are no match donors on the register or within the family. The HFEA has licensed tissue typing for three conditions. If we were to accept the amendment we would be taking a backward step. As the noble Earl said, we are not aware of any specific risk as a result of embryo biopsy, particularly when balanced against the benefit of treating serious medical conditions. For the sake of children where this treatment is their only hope, we do not think the amendment is appropriate.

Amendment No. 32A was tabled by the noble Lord, Lord Alton. The Bill states that the sibling must suffer from a “serious” condition; the amendment seeks to change this to “life-threatening”. The result would be that, to license embryo testing to discover tissue type, the HFEA would have to be satisfied that the condition to be treated in the sibling was life-threatening. As we have heard, the pre-legislative scrutiny committee recommended that the Bill should not limit to “life-threatening” those conditions that could be licensed by the HFEA, but should also include “serious” conditions. This word was inserted in the Bill—and, indeed, replaced “life-threatening” in the draft Bill—at the recommendation of the pre-legislative scrutiny committee. I am grateful to the noble Lord, Lord Jenkin, for explaining why the committee made its recommendation, as did the noble and learned Lord, Lord Mackay.

I hear the views expressed by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Winston. This is clearly a matter that we should explore further—I do not know whether in discussions before Report or on Report.

Amendment No. 33, tabled by the noble Lord, Lord Alton, seeks to add “effectively” to the tissue-typing provision. The result would be that it would only be possible to carry out embryo testing for the purpose of creating an embryo from which cells could be used in the treatment of a sick sibling if the treatment were effective. From a legal perspective, inserting “effectively” introduces uncertainty. As with many medical treatments, there is no guarantee that it will work. Also, what would effective treatment mean? Would it only mean where the child would be permanently cured of the condition? What if the treatment could extend the life of a sick child for a year or two, or 10? We are content that the Bill does not allow the creation of embryos where there is no chance that a treatment could be offered to a sick sibling, and that this is sufficient.

Amendments Nos. 34 and 35 would limit the circumstances when embryo testing for tissue typing could be carried out—to allow it only when the older sibling could be treated with cord blood in Amendment No. 34, and with bone marrow or cord blood in Amendment No. 35. Clearly there is much more that we should do to store cord blood, and we welcome the new cord blood bank.

The Human Tissue Authority oversees transplants of bone marrow for children. Along with an independent assessor, it would have to be satisfied that the child’s best interests had been properly considered and that the its codes of practice had been properly implemented. The Government decided on balance that the creation of embryos where the intention was to collect bone marrow for the treatment of a sick sibling was appropriate, subject to these safeguards. Concerns have been expressed about the donation of organs such as kidneys by children born following treatment. Although strictly speaking it could be possible under the provision to test an embryo for this purpose, it is not in any way the intention behind including the words “or other tissue”. I shall return to this issue shortly.

The role of the HFEA in regulating tissue typing is limited to the creation and testing of an embryo. However, there are further regulatory controls imposed by the Human Tissue Authority, which must approve such transplants. The HTA’s code of practice advises that before the removal of a solid organ from a child it is good practice for court approval to be obtained, as the noble Baroness, Lady Deech, explained. In practice, since the HTA took on responsibility for approving organ donations from children in September 2006, it has yet to approve a single case.

The Bill has no impact on the Human Tissue Act or the powers of the Human Tissue Authority. It addresses the grounds on which embryos can be selected, not the subsequent controls on interventions on the child that result. I note what the noble and learned Lord, Lord Mackay, said earlier about the scope of the Bill. We are content that, for the moment, amendments relating to the Human Tissue Authority are outwith the Bill. However, he and others may wish to seek clarification from the House authorities. If we accepted these amendments, the HFEA would not be able to license embryo testing where the intention was to use cells of the umbilical cord or other non-invasively obtained tissue that could be used in the treatment of a sick child.

Amendment No. 35 seeks to introduce the possibility of tissue typing being carried out where the intention is to use this tissue to treat a parent. To date, the HFEA has undertaken a fine balancing act in making these assessments when deciding whether to license embryo screening and selection to create a saviour sibling. I am not convinced that enabling a parent to create a child for the purpose of providing the parent with treatment for a life-threatening condition maintains that delicate balance.

The Bill introduces a regulation-making power to amend the purposes for which embryo testing can be carried out. Amendment No. 39 would restrict that power so that it could not be used in relation to tissue typing except to restrict the circumstances for which it could be carried out. As the regulation-making power is subject to the affirmative procedure, both Houses of Parliament would have the opportunity to debate and approve any regulations that were passed. To ensure that the Bill is flexible, and in light of the parliamentary oversight afforded by affirmative regulations, we do not feel that the amendment is appropriate.

Amendment No. 40 inserts a new paragraph that requires the authority to be satisfied, before licensing tissue typing, that other sources of tissue or therapy available have been thoroughly considered and rejected on reasonable medical grounds. People would not choose to do this if there was another option, as the right reverend Prelate explained. The process involves IVF to create the embryos for testing. Assuming an embryo had the correct tissue type, there is still a significant chance that that embryo would not result in a pregnancy. Although people seeking to use IVF for the purpose of creating a saviour sibling would not necessarily be infertile, the chance of pregnancy is still only likely to be around the 30 per cent mark.

The HFEA produces guidance in the form of a code of practice. For tissue typing, it includes a list of factors to consider, including the availability of alternative sources of tissue or therapy, now and in the future. The authority already takes into account the factors proposed by the amendment. Because of the HFEA’s guidance and the fact that it is extremely unlikely that someone would choose to create a saviour sibling where there was any other option, we think that the provision provided by the amendment is unnecessary.

Amendment No. 41 would prohibit the use of bone marrow and organs from a saviour sibling and make an offence of removing organs from a child born following tissue typing. With the regulatory protection and the very remote chance of people creating embryos for the purpose of removing organs, and to allow flexibility for the future, we do not consider the amendment to be necessary. It would also prohibit the use of bone marrow, which would not be desirable because that would prevent children being able to be treated with bone marrow cells when their life could be saved by such treatment, which generally causes no lasting harm to the donors.

The noble Lord, Lord Alton, asked what assessment had been made of the psychological impact of being a tissue-type child. In its code of practice the HFEA requires consideration of the long-term emotional and psychological implications for any child who may be born. I will write further to the noble Lord.

I acknowledge and understand the concerns that have been raised about the use of embryo-testing technology for the purposes of creating saviour siblings. The Bill allows the treatment of sick children where there really are no alternatives. We think, on balance, that this is appropriate for the majority of the discussions we have had today about bone marrow. However, I have listened carefully to all the concerns raised about the potential for the removal of organs. I feel rather uneasy about that, and I am certainly prepared to take that specific issue back and consider it further. There are perhaps other ways of expressing these issues; for example, “regenerative” may be the way forward. I am not sure that is something we need to discuss, but the Government are prepared to look at the donation of organs from saviour siblings. With that, I trust that the noble Lord will feel able to withdraw his amendment.

I am grateful to the Minister for the offer she has made to reconsider that issue. If she is right that the Bill does not allow scope for the House to amend the Human Tissue Act or the functions of the Human Tissue Authority, why is there on page 101 an amendment to the Human Tissue Act where the remit of the authority is modified?

We have been advised by the House authorities that the Human Tissue Act is outwith the Bill. I will look into this further and come back to your Lordships with clarification from the House authorities.

The Minister has done real justice to this. Along with the noble Earl, I welcome her assurance that she will look again at the issue of organs and that she will be willing to discuss some of the other anxieties and concerns that Members from all parts of your Lordships’ House have raised in Committee today.

The noble Lord, Lord Jenkin of Roding, was right when he said that after scrutiny has taken place and the Joint Committees have had their deliberations, of course people in this House can change their mind on Report as they come to see in the full light of day precisely what we are being required to do. Those who sometimes talk about moving to a unicameral legislature, and would like to see the abolition of your Lordships’ House, ought to see the record of yesterday’s and today’s parliamentary debates to see the quality of the contributions from all sides of this argument. I welcome every contribution that has been made today. This debate more than justifies the existence of this House.

I reassure the Minister that the article from New Scientist was meant to be cryptic. It was actually pointed at the provisions we are allowing for in the Bill, rather than advocating them.

Two issues have been raised during the debate. The first is the question of “serious” rather than “life-threatening”. The noble and learned Lords, Lord Lloyd of Berwick and Lord Mackay of Clashfern, have two of the finest legal minds in the country and I hope that between now and Report they will have the chance to give further consideration to this. It may well be that provisions around the wardships of court, which have previously prevailed, should apply in all circumstances. Maybe that is the route we will have to go, rather than looking at whether we use “serious” or “life-threatening”. We should consider other options for dealing with these questions when they arise.

None of us wants this to become routine—that seemed to be a theme that united us. The right reverend Prelate the Bishop of Winchester said we should not go towards a society that becomes deliberately instrumentalised. I agree entirely.

The noble Baroness, Lady Tonge, raised the issue of “serious” and wondered what the problem was for people like me in the interpretation of that word. During my opening remarks I tried to allude to one instance that is a good parallel here. She will know the case of the Reverend Joanna Jepson, a young woman who challenged the Lords because, on reading the statistics for late abortions, she discovered that cleft palate, club foot, hare-lip, webbed fingers and webbed feet were being included in the “serious” category for abortion of a child. Clearly none of those by itself is a life-threatening disease. That is an issue my noble friend Lady Masham raised at Second Reading. It goes to the heart of how we interpret things. Therefore, we have to be careful before we change a phrase, such as from “life-threatening” to “serious”, that sends a signal, intentionally or not, that somehow we want to lower the threshold of the requirement.

The other issue that has been raised is whether other tissues should be included in the scope of the Bill. I refer to some comments by Dr Simon Fishel, a senior IVF expert and an inspector, peer reviewer and external adviser for the HFEA who has already created saviour siblings to obtain umbilical cord blood, and who is the managing director of CARE Fertility Group, the United Kingdom’s largest independent provider of assisted conceptions. He welcomed the new legislation and predicted, in an article entitled “Secret ruling on ‘designer babies’” by Mark Henderson in the Times, that saviour siblings would be used in future to provide organs such as kidneys to treat existing children.

“You might start looking at organs”,

he has said.

There are therefore IVF experts who would take into consideration the effect on the planned child, as specified in the seventh code of practice, and would consider it a good idea to create a child to be a kidney donor. I do not believe that is the intention of the Committee, and I hope we will be able to make progress between now and Report in dealing with that matter.

I am grateful to everyone who has contributed to the debate today. We have covered some very controversial, difficult and profoundly testing issues. In the spirit of the answer the Minister has given, I am more than content to withdraw the amendment at this stage and hope it will not be necessary to test the opinion of the House on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32A to 48 not moved.]

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Agriculture and Horticulture Development Board Order 2007

rose to move, That the draft order laid before the House on 13 November be approved.

The noble Lord said: My Lords, the Agriculture and Horticulture Development Board Order 2007 is made under the Natural Environment and Rural Communities Act 2006. It abolishes the existing five levy boards from 1 April 2008 and replaces them with a new board, the Agriculture and Horticulture Development Board. The order also provides for the establishment of subsidiary companies for each sector. It is intended that companies will be created for six sectors: beef and lamb, cereals and oilseeds, horticulture, milk, pigs, and potatoes. The scope of the new board will be same as the scope of the existing boards, with the exception of the red meat sector, where separate arrangements are being introduced in Scotland and Wales.

Restructuring will improve accountability to levy payers, with the sectoral companies having boards made up mainly of levy payers. It will also improve the efficiency of the levy arrangements by providing more scope for co-operation and collaboration across the sectors. The shadow board has already proposed to locate all the boards and companies on one site, at Stoneleigh, with an estimated efficiency saving of £12.7 million over five years.

To improve accountability, the order also makes provision for a ballot of levy payers in each sector should 5 per cent of levy payers request such a ballot. However, to allow the levy board and its subsidiary companies time to prove themselves, and bearing in mind the proposed business case for the new organisation, which seeks relocation to Stoneleigh in 2009, it is right that there should be a moratorium on the right of levy payers to call a ballot for the first few years. Levy payers will be able to call for a ballot from 1 April 2012, which will be three years after the relocation and some four years after restructuring. The ballot provision was widely welcomed during the public consultation on the order.

The opportunity has also been taken in the order to make improvements to levy collection and reduce the regulatory burden; for example, by removing obligations to register in the horticultural, potato and cereal sectors and by increasing the levy threshold in the horticultural sector.

In summary, the order introduces a new structure that should improve the governance, accountability and efficiency of the levy arrangements. Accordingly, I beg to move.

Moved, That the draft order laid before the House on 13 November be approved. 2nd Report from the Statutory Instruments Committee.—(Lord Davies of Oldham.)

My Lords, I thank the Minister for presenting the order to the House. I remember from my history lessons a ministry of all the talents. No one would say that this Government are a ministry of all the talents, but at least the noble Lord can lay claim to be the Minister of all the talents. I am grateful for the way in which he has presented the case for the order.

I am an active member of a family farming and horticultural business. In this matter I have more of an interest than I do on most occasions when I speak to my brief—although I have no livestock interests. We grow potatoes, cereals, vegetables, bulbs and flowers. I was also a founding member of the Horticultural Development Council, and at that time was chairman of the bulbs and outdoor flowers panel. So I have previously been involved with the horticultural research institutes, particularly the former Glasshouse Crops Research Institute at Littlehampton, with East Malling, and in commissioning panels and ministry consultations.

If noble Lords think that I am painting myself as an expert, I should tell them that I certainly am not. I am an expert only to the extent that I recognise the complexity of getting these things right and how easy it is to upset them. One of my first experiences of interacting with government—it was a formative political experience—was some 20 years ago when I was working alongside the then chairman of the HDC, the late Frank Thomlinson, on trying to establish a viable levy-collecting system which we found MAFF was not much exercised by. It was my first experience of seeing how Governments enact and then move on, as if their role stopped at that point.

The HDC was set up to fill the gap in near-market research as a result of government withdrawal from this area. It has remained a research rather than a promotional body, which has coloured its thinking about these proposals. It is worth remembering that Rosemary Ratcliffe’s report identified the Horticultural Development Council as the most effective levy board.

There is concern that a sector which includes some 300 different crops may find it difficult to have its voice heard in joint working with single commodity boards. I have a copy of a long letter about the proposals which Colin Harvey, the chairman of the Horticultural Development Council, sent to Defra.

It has been said—I think by way of reassurance—that horticultural levies will be ring-fenced. Will the Minister confirm that? Where in the order is it stated?

Horticulture is vulnerable to overseas competition. Only 10 per cent of the £2 billion-worth of flowers sold in this country is grown here. It needs research and development and for that to be properly focused. Is the Minister satisfied that science will be at the heart of industry-levy companies’ activities?

Relocation could also present difficulties. The Minister mentioned the relocation of the bodies concerned to Stoneleigh, but I understand that horticulture is seeking to remain at East Malling, where it receives charitable support. What is happening in that regard? Is there concern that relocation will lead to loss of expertise? Does the Minister have an estimate of what percentage of staff will not move? I am reminded of the relocation of staff to Newport under the statistics and registration Bill, which the Minister mentioned, and all the problems with that. That is a similar case of expertise in an important area. How secure is the relocation deal with Advantage West Midlands, which has promised an incentive payment of around £7 million for the relocation?

Perhaps I may turn to some specific problems which have been raised with me and which I shall raise in turn with the Minister. A change from the draft order has been made to Article 5(1), whereby it now states:

“The Agriculture and Horticulture Development Board may establish a subsidiary company for each of the industries within the scope of this Order and may establish other subsidiary companies as may be conducive”.

In the past, the word used was “must”. Why has that change been made? It makes people suspicious, which is not what you want to create if you want to gain confidence. Similarly, there is a change in Article 5.2, which states:

“The Board may delegate any of its functions to a subsidiary company, but may continue to carry out any function it has delegated”.

What exactly does that mean? Does it mean that they will both be doing things together? Who will be responsible? Perhaps the Minister can explain the meaning of that paragraph.

The Minister mentioned the ballots and the date of 1 April 2012, mentioned in Article 11(6), as the embargo date before which it was invalid to have a ballot. However, in discussions in the consultative period, Defra’s response said:

“In response to the views expressed by a large majority of the respondents, both cross sectoral and sector specific, regarding what was considered too long a moratorium period (no … ballots until April 2013) it is proposed to reduce the moratorium period from five years to three years (April 2011) in the SI”.

So it seems a little odd that we are now looking at April 2012 as the deadline date. Why have the Government changed their position?

Noble Lords will know that these are matters of trust, that getting these things right is important and that changes weaken trust. All commodity boards depend on farmer and grower support. It is not just about paying a levy but about keeping involved and responding to initiatives. Keeping the industry onside is important and is a major factor in the effectiveness and success of any body set up in this manner.

Lastly, on costs, the Explanatory Memorandum goes into a lot of detail about the potential savings that may be available through the merged body. Accenture is certain that there will be savings, but the Minister knows that farmers and growers’ instincts will tell them otherwise. Is the Minister sure that they will be proved wrong?

My Lords, the noble Lord, Lord Taylor, has been most complete in his questioning on this order. It is not an order that we have any difficulty with at all; we welcome it, as it fully complies with what was set out in many of the consultation papers and some of the questions that we raised during the passage of the Natural Environment and Rural Communities Bill. I commend the Government especially on moving forward on some of the recommendations made in the consultation, and especially on the issue of ballots. I have just one question for the Minister. Does he believe that any ballots will take place at the appointed time? I do not believe that that has been the case in the past.

We welcome the developments. There is a slight problem in that it is very unfortunate that the corn levy instituted in 1880 and unamended since then is to be repealed in full. However, it is a welcome measure which will be very helpful to the industry in reducing costs, leading to a great deal more understanding and a slim-line version of the levy boards.

My Lords, I am grateful to both noble Lords who have spoken in this debate, the noble Lord, Lord Redesdale, for his brevity and the noble Lord, Lord Taylor, for his kind words. Let me assure him, however, that although we are a Government of all the talents, the only talent that I have is an inability to say no when pressed to take on an obligation for the Government on occasions such as this. I shall do my best to respond to the questions that he has asked; they are very appropriate questions, as I would expect from the noble Lord with his degree of expertise. He will recognise that I have no chance at all of matching him in his extensive knowledge of the issues underlying the order, but I hope that I can address myself to the main points that he has raised and I shall write to him if there are any that I miss.

Ring-fencing is definitively provided for in Article 6(6) of the order. That intention is stated there, so I can give the noble Lord an assurance on that front. I recognise his anxieties; it is much more difficult to represent a part of the industry where there are many products as opposed to the single product that others look after. I see the clarity being brought to that case, which will escape the new horticultural board in that respect. We recognise the vast experience that the noble Lord has in that area, and I hope that the ring-fencing provides a degree of assurance on that front.

The noble Lord asked me whether science would be at the heart of the development of this work. Science certainly has a part to play; it will be very much a question of the pressures from the boards with regard to what necessary research they expect to be done. No serious board could conceive of fulfilling its obligations without the appropriate application of science and looking ahead for changing circumstances. We all know what challenges are presented to agriculture by changing scientific opportunities, so I agree with the noble Lord that science should be at the heart of the work.

The noble Lord asked, too, about staffing movements. Although I bow to his experience with regard to agriculture, he will forgive me if I chide him by saying that I cannot see the problems associated with the relocation of the board being quite on the level of those of the Statistics Board. First, the numbers involved are very substantial. As we discussed in debates on the statistics Bill, we were in any case in midstream with regard to the process when feathers were at their most ruffled, so I was not at all surprised at the intensity with which the issue was debated during the passage of that Bill. With regard to the boards, I hope that sufficient consultation will go on so that feathers are not ruffled—very far from it.

Staffing interests are of course taken into account while the broad objective of the instrument is delivered, and it will be important that staff have full consultation and confidence in what is being proposed. After consultation, Stoneleigh was overwhelmingly the preferred location for the united board, so we are building on a clear expression of opinion. However, I recognise that there will be difficulties in some areas; staff will need to be consulted, but they will also need their full employment rights safeguarded. Of course, the Government undertake that they will be consulted and that, if it is the case that they decide to be made redundant rather than move to the new location, their full terms and conditions will be complied with on such an occasion. The noble Lord would expect the Government to do no less than give a full undertaking on this.

The noble Lord asked about the issue of establishing subsidiaries and the word “may” in that regard. I hope that he will forgive me if I am slavish in my attention to my note on this matter, as it is rather precise with regard to the law. The change is a technical one. Although I would hope to show some insight into the broad principles behind the order, I am easily adrift with regard to technical matters.

The technical change is a result of the wording of paragraph 1(1) of Schedule 10 to the Natural Environment and Rural Communities Act 2006. The wording of that provision specifies that an order,

“may include provision … enabling the board to establish subsidiaries,

but not requiring it to do so. Because “enabling” is used in the parent legislation, our legal advice is that the wording of this order should use “may” rather than “must” because the parent Act does not make the obligation mandatory.

As sector company chairmen make up the majority of the board, they will certainly be able to ensure that sector companies are established, so the noble Lord need not have excessive anxieties on that score. That is the reason for the change: it is a purely technical change deriving from the original Act. He also asked me about the date.

My Lords, Article 5 (2) suggests that functions can be delegated to the subsidiary companies but that the board itself will also carry out the same functions. What does that mean? Why has that been added? Is there some thinking behind it that has passed me by, because it seems gobbledygook to me at the moment?

My Lords, I do not think that I am going to be able to reassure the noble Lord in detail on that point. It may be an area that I will have to write to him about. Article 5(2) allows the board to continue to undertake functions delegated to the sector companies. The provision enables the Agriculture and Horticulture Development Board to carry out research and development even after it has delegated that function to the sector companies. For example, research concerning some environmental issues would be carried out at board level because of its relevance to all sectors, whereas there will also be a need for sector-specific R&D. It is to preserve for the board the capacity to carry out the functions while at the same time guaranteeing to the sectors that they can also do so. That is the principle behind Article 5(2).

My Lords, I certainly do not want to make a meal of this—in fact I am thinking of a meal yet to come—but there is the whole question of ring-fencing. The Minister has implied that levies collected by the subsidiary companies will not be ring-fenced. I am trying to look at Article 6 to find where it says that each subsidiary company’s funding will be ring-fenced. All I can see is that the levies themselves will be ring fenced in the sense that they will not be taken into general taxation. I cannot see any wording that says that the subsidiary companies’ funds are their own and will in no way be sacrificed for some general purpose, which is what the Minister has implied that Article 5(2) provides for.

My Lords, the noble Lord will recognise that some general functions are bound to be carried out by the overarching board. I am merely explaining that within the provision in this article, the overarching board can carry out its research and development functions while at the same time recognising that the individual companies will be doing the same for their own areas.

I understand the noble Lord’s anxieties, but he will appreciate that the concept behind the order is to set up the single board, but at the same time ensure that the sector companies have the maximum amount of delegated authority to carry on their activities. As I indicated in my opening contribution, I think that we have got the balance right on that. No great anxiety was expressed on that score during consultation on this matter, although there was on other points raised by the noble Lord.

In particular, he asked about the issue of the 2012 date. The concept that levy payers should have the right to a ballot is recognised and appreciated, and the significance of that is of the greatest import. He asked why there was a postponement. The concept behind the ballot is that it should be a valuation every third year of the performance within the industry. It seems a little unfair in the circumstances where significant reorganisation and relocation to work at Stoneleigh is involved, to do anything other than to say that the first ballot ought to happen after the board has settled down in its position at Stoneleigh. The ballot should take place three years after that. Otherwise, we would be getting a judgment on the work of the new arrangements before they had had a chance to show themselves in their settled state.

That is the reason for the postponement. It is not in any way sinister: it is a reflection of good management in circumstances where there are bound to be elements of change and the dislocation that the noble Lord referred to when he said that some staff might have difficulty in moving to Stoneleigh, and all that had to be worked through.

The noble Lord, Lord Redesdale, asked me to venture into prediction. Goodness gracious me, I have been long enough at this Dispatch Box to recognise the dangers of that, certainly while the noble Lord, Lord Oakeshott, is sitting just behind him. I will not get involved in too much prediction. I have met that in other areas and it has been to my cost. He will forgive me if I do not.

We hope that the industry and the levy payers are satisfied enough with the arrangements to want to show reasonable confidence in the way that the arrangements are developing. A demand for a ballot is in itself a challenge and an indication that things are not working as well as people want. They want to express their concern. They might even through the ballot effect very significant changes indeed. That is the proper democratic right for the industry. That goes without saying and it should it be built into the legislation. But I hope that we have got the broad structure about right. Therefore, if the noble Lord is pushing me for a prediction, it will not happen in the foreseeable future.

On Question, Motion agreed to.


asked Her Majesty’s Government what assessment they have made of the progress of the Government of Kenya in meeting the challenges on poverty reduction and the war on corruption set out in the Department for International Development’s 2004–07 country assistance plan.

The noble Lord said: My Lords, I am looking forward to debating with the Minister. It is the first time that I have had the pleasure of doing so, but I hope that it will not be the last and I hope that she will not be put off by the remarks that we have just heard from the noble Lord, Lord Davies. I am not asking her for any predictions. I am just asking her, from her great experience of east Africa, to tell me how she assesses progress on corruption and poverty reduction.

I welcome this opportunity to press the Government on these matters at this crucial point in Kenya’s history. I apologise on behalf of my noble friend Lord Steel of Aikwood, who is very sad not to be able to be here today. We decided to press for this debate together, but the date unfortunately came up when he is in Darfur. I know that he will follow the debate with great interest.

In almost half a century since independence, Kenya has had only three presidents—Jomo Kenyatta, Daniel arap Moi and now Mwai Kibaki. In just over three weeks’ time on 27 December, Kenya’s 14 million registered voters will decide whether to move onto a fourth. As the leader of the EU observer team, Alexander Graf Lambsdorff, pointed out in Nairobi only last week, Kenya set a high standard for the region with its elections in 2002. I know, because I was there. I took my family to visit a polling station in Coast Province and was moved by the welcome and openness of the election officials and agents and quiet hope of the stream of voters.

The count was unusually clean as well. But as the EU team now says:

“It is important that people can exercise their right to vote freely and that candidates are able to campaign in a peaceful, secure environment in which there is a level laying field”.

Does the Minister believe that hope has been fulfilled so far in these elections? What steps are our Government taking to impress on the authorities in Kenya the overwhelming need for free and fair elections if development is to proceed, and Britain’s major commitment as Kenya’s second largest bilateral donor with it?

I give a little background. My first job at the age of 21, just weeks after I left Oxford, was an an economist statistician in Kenya’s Ministry of Economic Planning and Development. There was a houseful of us. We were called Overseas Development Institute Nuffield fellows in those days. I took over my bed from my honourable friend Vince Cable when he left. My Minister was Tom Mboya, a brilliant leader in the independence movement; at least he was until he was shot one Saturday lunchtime in Nairobi in 1969 just down the street after we had finished work. That produced a turbulent and violent run-up to elections with “oathing” and tribal clashes at which President Kenyatta, Vice-President Moi and Mwai Kibaki, as the Minister of Commerce and Industry defeated Oginga Odinga, the father of today’s leading opposition candidate, Raila Odinga. With Uhuru Kenyatta, the president’s son, the losing presidential candidate in 2002, your Lordships will see that the hereditary principle is proving much longer lasting in Kenyan politics than in our own.

My job taught me all about poverty in Kenya. I was put in charge of Kenya’s rudimentary cost of living statistics, and ran a household income and expenditure survey in Kenya’s three main towns, Nairobi, Mombasa and Kisumu. I recruited a team of 40 enumerators, each of whom had to visit every household that was on the sample every day for a month and note down every cent and shilling that they spent. Many people had low-paid jobs and a desperate struggle to last until the end of the month, with many mouths feeding off the one person in work. Many more had no regular job at all and survived on a bit of hawking perhaps, casual labour for a few hours or days, existing possibly even on the fringes of crime. Now there is a much larger and better educated middle class, but for most people in Kenyan towns that struggle to survive goes on in much the same way as it did then.

There was small-scale corruption in my day. For instance, I had to put my foot down when all the people who were sent to me for jobs as enumerators seemed to have similar names beginning with “Ki” or “Mu”. I pointed out that I wanted some whose names included an “O” or a “Wa”. There was that sort of small-scale corruption. It was corruption in a sense but I learnt that it was based on family and tribal loyalty. However, in those days there was nothing like the large-scale, high profile cases involving hundreds of millions of dollars which have scandalised ordinary Kenyans and Kenya’s friends abroad over the past decade. Corruption is especially vile in a poor country where water, food or medicine are literally snatched from the mouths of the most vulnerable when corrupt officials divert funds. What action is the Fraud Response Unit within DfID taking to avoid repetition of the four cases of misappropriation of donors’ funds in Kenya over the past two years revealed in Hilary Benn’s parliamentary Answer at col. 1984 of Commons Hansard of 21 June?

My noble friend Lord Avebury will cover, among other things, the Kroll report but does either of the non-Nigerian cases on which the International Corruption Group of the City of London police has started work relate to Kenya? DfID’s October 2007 publication, Reducing Poverty in Africa, states:

“Thanks to DFID funding (£6 million over 3 years) to the International Corruption Group, the City of London and Metropolitan Police Forces now have 16 additional police officers”.

Is not Kenya an obvious place for the Proceeds of Corruption Unit—which has reinforced efforts to combat money laundering by “Politically Exposed Persons”, as the report puts it—to focus its efforts, especially in the light of widespread and persistent reports of very large sums held in London bank accounts by retired and serving Kenyan MPs and their families? Just because Britain’s own recent record on transparency and party funding leaves so much to be desired, we must not turn a blind eye to corruption elsewhere, especially if British taxpayers’ money has effectively been recycled through corrupt fat cats abroad back to British bank accounts in London.

A year ago Kim Howells, the Foreign and Commonwealth Office Minister, said that “graft” was rampant at virtually every level of Kenyan society and government. He said after a visit to Mombasa:

“People can be bought, right from the person who works at the docks to the Government. The weakness has been recognised by drug traffickers and probably by terrorists, too”.

A few weeks after he said that, the head of Mombasa’s CID was shot dead because he was making too much progress in clearing up corruption at the docks. Mr Howells also noted that pledges from the Government of President Kibaki, elected in 2003 on a reform platform to clean up corruption had not been met. He said:

“Almost nothing has resulted from that. There is clearly complicity at very high levels in terms of arrests”.

He also said that ordinary Kenyans he had spoken to during his trip had expressed a “huge sense of disappointment” with the lack of progress in addressing corruption. He added:

“We have not seen significant arrests or legal action”.

Is that still the Government’s view, and what are they doing about it? Widespread corruption in a society breeds cynicism and despair. The 2004-07 country plan contained a very interesting analysis pointing to a culture of political and economic patronage as the root of widespread corruption. It exploited ethnicity. The capacity of Kenya’s public institutions—the civil service, public sector banks, the police and the judiciary—was seriously and systematically undermined over many years and became progressively less able to provide the checks and balances necessary to limit the spread of corrupt practice. Rather than Kenyans’ taxes being collected fairly and spent efficiently on the basis of need, they have often been collected arbitrarily and spent for private gain. How do the Government assess the position today?

Despite this difficult background, the Kenyan economy has been showing healthy overall economic growth over the past three years. But GDP growth rates of 5 or 6 per cent are not as impressive as they sound when rapid population growth means that the economy has to grow by at least 3 per cent a year just to stand still in terms of average income per head. Kenya is a fertile country but population growth has to come down if a fixed amount of land is to feed the 70 per cent of the population who still make their living from agriculture, and to slow the torrent of people going into the towns and cities in a desperate search for work or income of any sort.

The 2004-07 plan pointed out that accurate and detailed information on Kenya is in very short supply but available data suggest that the number of people living below the national poverty line has risen from about 11 million—48 per cent of the population—in 1990 to around 17 million—56 per cent of the population—in 2001. What is the Government’s latest estimate of the number and percentage of the population living below the national poverty line?

The House of Commons International Development Committee report on the 2004-07 country assistance plan concluded:

“DFID must be able to assess whether sufficiently speedy progress is being made towards agreed objectives. DFID must be able to monitor Kenya’s progress towards the MDGs, and to evaluate the effectiveness of its assistance … Well-designed processes for poverty reduction and development assistance are crucial, but they must be judged by whether or not they deliver the outcomes required in an agreed timescale”.

I would be interested to hear the Government’s response to that.

Kenya is a country with enormous potential. Its people are far better educated than 10 or 20 years ago. It has wonderful natural advantages, a free press, a basically sound infrastructure and businessmen and women with great entrepreneurial flair. But too many of its best brains have concentrated on enriching themselves rather than their country and their fellow citizens in recent decades. Other countries in Africa have worse divisions between rich and poor, a lower standard of living and more brutal and repressive regimes. But ordinary Kenyans’ high hopes of the new Government they elected five years ago have been dashed. I trust that the Minister can tell me how our country’s resources and influence, which, as she knows, are still very great in east Africa, can be brought to bear to help Kenya find prosperity with equity and accountability in the years ahead.

My Lords, I am grateful to the noble Lord, Lord Oakeshott of Seagrove Bay, for introducing this topical debate. As he mentioned, it is opportune that we debate these issues in the run-up to the forthcoming election on 27 December. Unfortunately, I do not share the same amount of first-hand experience as the noble Lord, Lord Oakeshott, as I have lived most of my life in South Africa, but I am a regular visitor to Kenya and I have had first-hand experience of life in the rural areas.

The central theme of the opposition leader Raila Odinga’s campaign gets right to the root of this debate in that he is challenging President Kibaki’s Government’s pledge when they came to power in 2003 to end corruption, provide more transparency in government and implement measures to alleviate poverty.

In addressing this debate and similar debates on Africa, there is a tendency to be negative about the continent. There are clearly many ongoing crises and challenges in Africa, but there have always been many success stories. It is important in such a debate to balance the positives with the negatives. To be fair, most people in Kenya today would agree that the country is certainly in a better state than it was five years ago when President Kibaki succeeded Daniel arap Moi.

President Kibaki’s election in December 2002 prompted hope around the world that Kenya would shake off the shackles of corruption and move forward. The country is rich in resources, rich in wildlife, rich in tourism and rich in potential. There have been many success stories in Kibaki’s Government. Notably, there has been an improvement in primary school education, which has dramatically raised levels of literacy. It is heartening that 86 per cent of Kenyan children now attend primary school.

He has also supported the economic management of Finance Minister Amos Kimunya, with the result that economic growth has accelerated steadily and reached over 6 per cent last year. I noted the cautionary note of the noble Lord, Lord Oakeshott, that there is still a high population growth rate in excess of 3 per cent. The East African Association, the corporate body representing major businesses in the region, has recognised a healthy upturn in the formal business sector, with many large companies reinvesting in their own businesses, which is encouraging. They have also welcomed the Kibaki Government’s laissez-faire approach to business. There is also no doubt that the remarkable growth in mobile phone usage, particularly in rural areas, over the past five years has substantially assisted many smaller and medium-sized businesses.

It is important to note the role that women have played as a driving force behind this economic upturn. In many cases, they generate income from three different sources: producing, selling and transporting goods. However, while domestic growth has been strong, there has been less international inward investment into the country. Only 5 per cent of Kenya’s budget is funded by international donors, compared to 50 per cent for some of its neighbours. The country still offers a skilled workforce and a developed financial sector, quite apart from the largest transport hubs, manufacturing capacity and road network in the region.

The recently published Kenya Integrated Household Budget Survey shows that more Kenyans are leading better lives, with inflation running at just 6 per cent. There has been notable growth in the size of the so-called Kenyan middle class, which, in turn, seems to have strengthened the citizens’ ability to call the Government to account for their actions. They will certainly play a major role in the forthcoming elections.

All those indicators add up to good news. However, President Kibaki has failed to address the problem of corruption. He has also failed to fulfil many of his pre-election promises, including the delivery of a new constitution. His Government have made many commendable recommendations in White Papers. However, there has been a distinct lack of follow-through and action in delivery of many of those initiatives. Those failures and the lack of strong leadership have led to increasing public concern about the competence of the president and his Government and a clear ebbing of the optimism that greeted President Kibaki’s election just five years ago.

At Nairobi airport, a signpost greeting passengers as they reach the baggage carousel reads, “No bribes should be given or accepted whether demanded or not”. Sadly, actions will always speak louder than words. Kiraitu Murungi, a Member of the Kenyan Parliament, said at a recent conference on corruption:

“Corruption is not limited to ministers, permanent secretaries and other top state officials. Corruption is everywhere. The chief, the businessman, the teacher, the driver, the messenger, the farmer, the rich and the poor—your brother and mine—are involved”.

Sadly, for every step forward, there seem to be two steps backwards. One moment, we hear the encouraging news that the Kenya Revenue Authority has dropped out of the top five most bribery-prone organisations in the country, as monitored by the corruption watchdog Transparency International. Next, Kenya’s Parliament passes a law that prevents the Anti-Corruption Commission from investigating grand corruption that took place before May 2003. As your Lordships are aware, this measure has halted inquiries into the two most notorious cases—the Anglo Leasing scandal and the Goldenberg affair—and effectively protected senior members of the current and previous Governments from interrogation.

One moment, we hear encouraging noises from the president. The next, we see research showing that no fewer than 36 per cent of Kenyans report that either they or their families have been paid a bribe in the past 12 months. It is perhaps most telling that former President arap Moi has endorsed President Kibaki as he seeks re-election in the imminent general election. This is a clear indication of Kibaki’s failure to break from the past.

Having lived much of my life in Africa, I argue that a key driver for effective and sustainable democracy is the requirement for strong and transparent leadership where there is delivery on pre-election promises, on which I commend Nelson Mandela of South Africa. Unfortunately, this has been sadly lacking in Kenya. Several months ago, the polls indicated that Kibaki was coasting towards comfortable re-election, but recent polls suggest that the race has tightened, and some polls are even putting the opposition in the lead. Odinga is a populist, and his credentials are questionable, but he will serve his country well if he wins and activates the policies that Kibaki has outlined but not pursued. By failing to address corruption, Kenya is losing the war on poverty.

I have always advocated African solutions for African problems, and that remains the case. Corruption in Kenya will stop when Kenyans stop being corrupt. For too long, Kenyans have been asking each other for “a little tea”; popular slang for a bribe. So long as that culture remains, the country will fail to address corruption and, by failing to address corruption, it will struggle to alleviate poverty.

Before I sit down, I would like briefly to address the overarching challenge of reducing poverty. Sadly, there is still a lack of basic infrastructure, particularly in the road network and electricity supply in many poorer areas. We should also bear in mind that poverty rates in west Kenya towards the coast and semi-arid areas are twice those in the central province. As the Department for International Development’s country assistance plan has made clear, Kenya will only start addressing the challenge of poverty reduction when it finds the collective will to address the problem of corruption. I hope that the result of the forthcoming election will now cement words into actions.

My Lords, I congratulate my noble friend on getting this debate at such a critical moment in Kenya’s affairs and on the way in which he has deployed his extensive knowledge and experience this evening.

Corruption did not begin with President Mwai Kibaki but, as he came into office pledged to stamp it out, it was a bitter disappointment that under his Government it was business as usual. My noble friend has quoted Kim Howells’s vivid description of the corruption epidemic last year, and before that our then High Commissioner, Sir Edward Clay, had accused corrupt Ministers of, “vomiting on the shoes” of donors.

The Foreign Office has said that we were never asked for help in freezing assets stashed in the UK during the Moi presidency by corrupt politicians, including his sons and two close allies. One offshore account was said to contain $300 million, but the cash was moved after a tip-off from Kenya. Other alleged assets said to have belonged to the Mois and their cronies included a flat in Lowndes Square and houses in Surrey.

The Kroll report, mentioned by my noble friend, on assets embezzled from the people of Kenya, has been swept under the carpet by President Kibaki; but fortunately the text is available on the website “Wikileaks”, which is to be warmly commended for exposing the details of the multi-billion pound scam. I ask the Minister whether the Government have studied this report, whether the police are considering the evidence it provides of criminal activities and whether there is power to sequestrate the many properties in the UK mentioned in the report as having been acquired through corrupt transactions. Since we protested to the authorities in Kenya at the end of August about the false accusation by Nairobi’s spokesman that the UK had refused to help their inquiries into theft by the Moi gang, what further attempts have we made to persuade the authorities to follow up the Kroll report, particularly to nail the currently serving MPs it mentions, including one Minister?

It has been mentioned that Britain is the second largest bilateral donor to Kenya and DfID says that in 2007-08 it is providing £50 million in aid, 80 per cent of it for health, education, humanitarian assistance and social protection. The remaining 20 per cent supports improved governance, a private-sector development and investment climate, financial sector reform, land and agricultural reform and improved statistics. We provide no poverty budget support at present and DfID says this is because not enough progress has been made in dealing with corruption. The IMF did approve Kenya’s PRSP, which was to run for three years from March 2004, and it would be useful to know whether DfID has evaluated the outcomes.

The UNDP has a country plan running for five years to the end of 2008, which included employment creation in labour-intensive projects such as roads and flood prevention. Has it found that corruption was a significant impediment in its operations, and does it find it necessary, as we do, to channel aid through reliable financial management agents or earmarked accounts, or direct to civil society? A key objective of our country plan was to co-ordinate donors in supporting the ERS, and I was glad to note the draft joint assistance strategy for the next five years, which provides for unified assistance by a number of agencies. Can the noble Baroness say whether that has been finalised and whether it includes robust procedures for ensuring that direct aid is not embezzled by politicians or officials?

In spite of Kenya’s healthy growth rate in the past five years, which was mentioned by both noble Lords, and particularly during the years of DfID’s country assistance plan, Kenya remains one of the poorest countries in Africa. As my noble friend pointed out, that is partly because of its high population growth and poor access to reproductive healthcare. US restrictions on its aid to family planning decreed by George Bush were a contributory factor in making the situation even worse. Those cuts led to reductions in the provision of contraceptive care and advice, the closure of clinics, staff redundancies and programme cuts. Have we done anything to make up those deficiencies?

Kenya is near the bottom of Transparency International’s corruption perceptions index and in the UNDP’s human development index it ranks 148 out of the 177 countries reporting. This shows a decline since the turn of the century, during which most other states have made progress, particularly sub-Saharan Africa, and is evidence of the connection between endemic corruption, with the blatant and obscene misdistribution of wealth that we have seen in Kenya, and the appalling poverty which afflicts the broad mass of the population. The UNDP identified gross abuse of public office and incorrigible tolerance of mediocrity as factors leading to the misappropriation of productive resources and the undermining of economic development and human rights.

Kenya also faces huge problems which are not of its own making. HIV/AIDS affects 2 million people and was responsible for a reduction in life expectancy from 60 in 1990 to 45 in 2002. Although infection rates are levelling off, far more needs to be done. DfID was funding the supply of ARVs to half the 120,000 people who needed them by the end of 2006 and it would be useful to have an update on that programme since the end of last year.

Land degradation and desertification mean that 10 million people living in the affected areas suffer from acute poverty. Global warming will make the situation far worse. A one-metre rise in sea level would mean the loss of $500 million of crops in coastal areas, and the environment Minister told a UN conference in Nairobi that climate change was already threatening Kenya’s poverty reduction programme. Barack Obama, whose paternal family was from Kenya and who may be the next US President, may wish to reconsider his country’s attitude to international agreements on climate change prevention in the light of the disproportionate burden imposed on Africa by America’s profligate use of energy. I hope we may draw those facts to his attention.

Kenya faced a new influx of 40,000 refugees fleeing the renewed fighting in Somalia at the turn of last year before the border was closed, and is now host to 200,000 Somalis in three camps in Dadaab. Save the Children is working to protect the 70,000 children there and it would be good to know whether DfID has provided any resources to help cope with the increased numbers.

Britain is committed to the achievement of the millennium development goals and the Government response to the International Development Select Committee report said that we were working with Kenya and our partners to ensure that information on progress was available to all, and would be used for monitoring progress. Almost all the indicators that we have, apart from attendance in primary education, mentioned by the noble Lord, Lord St John, were negative. The slum population has doubled since 1990, under-five and infant mortality rates worsened between 2000 and 2005, TB is on the increase and the proportion of infants immunised against measles has deteriorated. It is true, as it was at the start of our country development plan in January 2004, that Kenya will fail to meet the majority of the MDGs and we need to identify the reasons. Kenya applied to join the international alliance to vaccinate children against pneumococcal diseases, which kill a million children a year, but did not meet the criteria. Why was that and can we help them to qualify?

In three weeks, the voters in Kenya are going to decide whether President Kibaki or the opposition headed by Mr Raila Odinga is best qualified to deal with these formidable challenges. Unfortunately, there are signs of trouble. An opposition candidate has been murdered by gunmen; an opinion poll has been accused of manipulating the results in favour of the Government; language that incites ethnic hatred is being used on some radio stations; and the UNDP has accused TV and radio of favouring Mr Kibaki. The chief election commissioner’s term of office having expired on 2 December, it was renewed for another five years by President Kibaki, contrary to the advice of the EU mission at the 2002 election that renewal should not occur close to an election. In deciding how to assist the Kenyan people, DfID and other international donors will no doubt consider whether they have truly chosen their Government in free and fair elections.

My Lords, my noble friend Lady Rawlings is very disappointed that she cannot be here for this important debate.

Reform of the public sector in Kenya must lie at the heart of addressing the chronic issues of governance and corruption—issues that head the priorities set down in the Kenyan Government’s Economic Recovery Strategy for Wealth and Employment Creation reform programme. That is the key that the Department for International Development must press in delivering greater progress. With DfID providing millions of pounds in assistance, there must be a clear and driven timetable showing how far the Kenyan Government have reached their key priorities. Can the Minister say whether Kenya has managed to reach the target of creating 500,000 jobs a year, and how far has the Minister’s department been involved in reshaping the DfID-Kenya team and relationships with the wider international community?

There is little doubt that Kenya has huge potential. There is a reasonably sized, skilled workforce and of course Kenya boasts an extensive road network in east Africa, as has already been mentioned, yet the past decade has seen Kenyans becoming poorer. Life expectancy has fallen from 57 to 47 years, and more and more people find themselves on the margins of extreme poverty. Does the Minister envisage that Kenya will meet its commitment to achieve the majority of the millennium development goals that it, along with 190 other countries, signed up to in 2000?

An important aspect of Kenya’s endeavour to meet the MDGs is the equalisation of gender inequalities. What is the Minister’s department doing to ensure that Kenya brings about equality for women, who make up 75 per cent of the agricultural workforce but still own only 1 per cent of the land? What specific programmes are in place to ensure that women receive better access to education and skills training?

Of course, in 2003 we all warmly welcomed the National Rainbow Coalition’s declaration of free primary education and the abolition of charges for children. That has undoubtedly led to a significant increase in the number of children going to school. However, there is a challenge to ensure that these children complete their education. More effort must be made to reach out to the many children who are still not in education, including AIDS orphans, who are extremely vulnerable to exclusion.

Approximately 300 people a day die from HIV/AIDS-related illnesses. There are around 1.2 million AIDS orphans—the figure is growing—and approximately 1.2 million Kenyans are living with HIV. The Kenyan Government must make a concentrated effort to ensure that the prevention and treatment of HIV/AIDS remains high on their agenda. Does the Minister remain confident that the commitment by the G8 to provide universal access to prevention and anti-retroviral treatment by 2010 is on track?

Rising poverty over the past decade has dealt Kenya’s economic growth a harsh blow, with roads, railways, telecommunications, power, water and sanitation deteriorating at a pace that will take billions of pounds to rehabilitate. The Kenyan economy has increasingly become uncompetitive, and there is a lack of confidence from investors facing wholesale corruption and further economic instability. Has progress been made in getting reassurances from the Minister’s counterparts in Kenya that these matters are being dealt with as a matter of priority and that all systems will demonstrate transparency, as they need to do? Investors must have reassurance and a full commitment from the Kenyan Government.

What is the Minister’s assessment of the interest shown by China in the African continent, and does she have any information on how this is being translated into economic growth for African countries? Is Kenya part of that economic investment? Does the Minister agree that trade and access to markets is visibly more advantageous than reliance on aid programmes? However, I accept that the latter must continue its path for some time yet.

We all strive to reduce our carbon footprint in our fight against climate change, but does the Minister agree that countries such as Kenya need entry into globalised markets and that we must be careful that we do not inadvertently close the doors just as they get started?

Kenya is a water-scarce country, which adds to its difficulties. It is vital that aid programmes and funding, through both government and non-governmental organisations, are directed at projects that utilise the skills of the agricultural sector, which still employs more than 80 per cent of the population and accounts for nearly 30 per cent of Kenya's GDP. Kenya struggles to achieve food security—we witness this with the rising numbers of malnourished children.

Does the Minister have any progress reports on irrigation potential being increased in Kenya, and on whether there is a timeframe to meet these plans? I am sure she will agree that tackling food security and improving sanitation systems will greatly decrease mortality rates and the incidence of sickness, from diseases such as malaria and diarrhoea.

Improvement in water supplies will—I am sure the Minister will agree—go a long way in assisting Kenya to meet its commitments to the MDGs. We are well aware that poor governance and corruption have undermined Kenya's socio-economic performance, adversely affected investments and increased poverty. But can the Minister say whether the Kenyan Government have made progress in strengthening governance institutions?

Although Kenya and neighbouring countries face the problems of poor governance and corruption, there remains and will remain the problem of east African borders being wide open and easy to exploit for drug trafficking, human trafficking and terrorism. While we think it is vital that Kenya is supported in wishing to achieve the goals that have been set, it is also important that aid agencies, and the scrutiny of British aid, be evaluated by an independent body.

My honourable friend in another place, Andrew Mitchell, has said that a truly independent watchdog is needed to commission, totally independently, DfID’s work and to report to the International Development Select Committee. Will the Minister agree with my honourable friend that outcomes and outputs should be the focus of her department?

Leading aid agencies have echoed the Conservative Party's call for better independent evaluation of British aid. If we are to maintain public confidence in, and support for, the British aid programme, it is crucial that we lead the way in transparency and accountability. We must be able to measure with honesty how effective aid is in reducing poverty, and if there are better systems and methods to direct aid. We need to have an independent body that will ask more challenging questions of multilaterals and bilaterals than DfID may be inclined to ask, given DfID’s need to retain close collaborative relationships with these and other donors.

I conclude by thanking the noble Lord, Lord Oakeshott of Seagrove Bay, for initiating this debate. An economically strong African continent, with good governance, will bring great benefits to us all. This is a hugely important subject in which, my Lords, you have much greater in-depth knowledge than I do.

My Lords, I am grateful to the noble Lord, Lord Oakeshott, for initiating this debate 23 days before Kenya’s general election. This time five years ago, expectations of the last elections ran high. Kenyans looked forward to change, growth, jobs, free primary education and zero tolerance for corruption. This time, perhaps, disappointment has tempered hope.

Ethnicity and patronage are still important determinants of the outcome of elections and a career in politics is still one of the quickest ways of accumulating wealth. The incumbents and the opposition are mostly cut from the same cloth. So it is with sadness for the country of my mother that I say, in response to the remarks of noble Lords, that I fear that, whatever the outcome of this election, we cannot expect a dramatic step-change in governance and corruption.

Nevertheless, issues of substance are being increasingly discussed and the electorate are showing interest in the progress, or lack of it, that this Government have recorded. What looks like a close election has created at least the possibility of a democratic moment, to break the hereditary principle that the noble Lord, Lord Oakeshott, talked of—an election in which both incumbent and opposition have equal chances. The results of the parliamentary primaries on 16 November suggest that two-thirds of the Members of Parliament are likely to be new faces.

As the noble Lord, Lord Oakeshott, indicated, there is a track record of managing election days, and there will again be a number of international observer missions from the EU, the AU, the US and others. But the acid test will not be just whether elections are free on the day but whether they are fair during the campaign in the use of government resources. We continue to monitor, and to press for a level playing field.

Alan Greenspan says that there is only one difference between a developed and a developing country—and that is the rule of law. Thirty years ago Kenya was a prosperous middle-income country. But from the 1970s to the turn of the century, we witnessed the economy contract, life expectancy fall from 62 years to 49 and poverty increase from 48 per cent to 56 per cent. As the analysis of our country assistance plan shows, at the heart of much of this decline lie deep-rooted structures of economic and political patronage and corrosion of the very system of checks and balances designed to deal with corruption.

Corruption is more than the loss of income from a series—however relentless—of headline-grabbing scandals. I cannot comment on the individual cases which noble Lords have raised except to say that we urge a successful prosecution, however difficult, as the clearest indicator that the Government of Kenya are serious about removing the culture of impunity among the political elite. Corruption is one of the biggest hurdles in the fight against poverty. Every day, ordinary Kenyans must bribe to get a job, to operate a business or to build a house. The police are widely regarded not as a source of law and order but as an informal tax on the poor. One national survey showed that 25 per cent of Kenyans face frequent demands for payment in their efforts to obtain the healthcare to which they are entitled.

This year, Kenya, with help from DfID, has been one of the world’s top reformers in the “Doing Business” indicators. But while the private sector is reviving, businesses still name corruption as one of the main barriers to accelerated growth. There are also serious problems with human rights. We urge the Government of Kenya to investigate the alleged killings associated with the Mungiki gangs.

Some have argued that the mere presence of donors such as DfID creates a moral hazard, props up corrupt Governments and even adds to the incentives for corruption, and that donors should walk away. It would be an easy thing to do and, for some, not without a sense of personal moral satisfaction. But the problem with these arguments is that they offer no alternative solutions and no evidence to show that disengagement leads to change. They ignore not only the sheer human cost of punishing the poor for the sins of their Government but the opportunity of empowering, with human development, a generation of Kenyans to bring about change in their lives and the governance of their country.

Our approach to fighting corruption, as set out in our governance White Paper, focuses on the long-term political drivers of change. Corruption is a symptom of weak governance, poor political accountability and inadequate systems. So, first and foremost, we protect UK taxpayers’ funds. We give no budget support in Kenya but use financial management agents and civil society to deliver aid directly. Secondly, to help protect Kenyans’ funds, since the last election we have had programmes to strengthen governmental systems of public finance management, procurement and, as the noble Baroness, Lady Verma, said, public sector reform.

Thirdly, we work with local civil societies to strengthen their voice in holding their own Government to account. We fund one of the most active Transparency International chapters in Africa which produces a bribery index, naming and shaming organisations, and we have just funded the start-up of a national taxpayers’ association.

Fourthly, we have supported the introduction of extensive anti-corruption legislation which, for example, makes bribes a criminal offence, protects witnesses, and requires public officers to declare their wealth. We are also awaiting legislation on money laundering and whistleblower protection. In response to the question from the noble Lord, Lord St John of Bletso, although there was an attempt to change legislation to undermine the powers of the anti-corruption commission, the President has used his veto and it has not been enacted. Fifthly, we work in-country and internationally to trace and recover stolen assets.

I refute the comparison of the noble Lord, Lord Oakeshott, to party funding issues. In response to the noble Lord’s question, I can confirm that we have not been asked by the Government of Kenya to investigate the Kroll report or any assets in any bank accounts or other cases. As to any action we can initiate, I can neither confirm nor deny whether investigations are ongoing or being considered, as this would negatively impact on police operations. I can say, however, that we actively support the International Corruption Group and my officials work closely with the Serious Fraud Office. Lastly, we exercise targeted visa bans for those involved with corruption, including government Ministers.

However, in the spirit of balance which the noble Lord, Lord St John of Bletso, evoked in his thought-provoking remarks, our country assistance plan also recognises the potential and opportunities for Kenya, and the catalytic role that it could play in east Africa.

A one-sided representation of Kenya would be inaccurate. There are some changes. The economy has seen three years of positive per capita growth and, showing a glimmer of what is possible with capable government leadership, the introduction of free primary education in 2003 was an overnight success. Accompanied by school feeding, teacher training, rehabilitated classrooms and strong donor support, it has led to 1.8 million more children in school. Gender parity is at 96 per cent and, as the noble Baroness, Lady Verma, points out, more needs to be done to reach orphans, vulnerable children and those in remote areas. Nevertheless, Kenya is on track to meet the second MDG to get every boy and girl into primary school.

There have been innovative approaches to deal with local accountability and corruption. DfID’s early leadership in the education sector meant that each of the 18,500 public primary schools has an individual bank account controlled by a school committee of parents and teachers. Government and donor funds are directly deposited into these accounts. Each school publicly displays its receipts and expenses on blackboards for the public and parents to see, as I saw for myself at the Olympic primary school in Kibera. Showing that successful development can shape political debate, all three major parties have announced that they will from January 2008 meet all tuition fees for secondary school, which would make Kenya one of the first countries in Africa to make secondary education accessible to all.

There has been success in the fight against malaria and HIV/AIDS, which are the largest and second largest causes of deaths. DfID has supported the distribution and use of more than 12 million bed nets since 2004 and, as part of a comprehensive package of prevention and better treatment, that is leading to real epidemiological changes and a dramatic 44 per cent reduction in mortality in sentinel areas in just two years. As many noble Lords remarked, HIV/AIDS prevalence is an issue, but it has dropped by half to 5 per cent as a result of concerted efforts to change behaviour, lower incidence levels and, unfortunately, higher death rates. Half of those in need receive anti-retroviral treatment, averting 57,000 deaths from AIDS by 2006. That reflects the multi-sector donor approach and our commitment to universal access to ARVs by 2010.

However, overall Kenya, like the rest of the continent, is off-track in meeting the health-related MDGs. Child and maternal mortality rates are the most powerful indicators of the effectiveness of an underlying health system. Infant, child and maternal mortality has increased rather than deceased in Kenya over the years so Kenya was picked as one of the eight first-wave countries in the international health partnership launched by my right honourable friend the Prime Minister in September. Its purpose is to ensure that donors co-ordinate and back country plans to provide sustainable, comprehensive and universal healthcare beyond the focus on individual diseases. That is why half of DfID’s programme focuses on healthcare.

The proportion of those living in poverty has reversed to 46 per cent since the publication of our country assistance plan, but the impact of growth has been uneven. Only 50,000 of the 500,000 jobs have been created, and 16 million people, mainly in the arid or semi-arid lands, live on the edge of survival. The cycles of droughts, floods, disease and even conflict have taken their toll. At the height of the 2005 drought, 10 per cent of the population needed emergency humanitarian assistance. So DfID is pioneering a new programme to protect the assets of the most vulnerable, to keep children in school and to break the cycle of dependence during emergences.

As the noble Lord, Lord Avebury, rightly points out, poor governance is not the only serious threat to poverty reduction. There is clear and consistent evidence in the IPCC climate model that Kenya, especially northern Kenya, will get warmer and wetter and experience more severe droughts in coming decades. We are therefore conducting a climate change risk assessment and developing adaptation options for all our programmes, including water. We are also working along the lines of the Stern review to analyse the risks of climate change to growth and poverty reduction in Kenya.

In response to specific questions of the noble Lord, Lord Avebury, the IMF has recently approved its final review of the poverty reduction growth facility, and the Kenyan joint assistance strategy was approved by 17 donors and provides a robust basis for a stand against corruption.

I am proud of what DfID has achieved in Kenya. Our work on terrorism, working with the Government, does not affect our evaluation of our own work in DfID. An independent country programme evaluation published this year states:

“The Kenya country programme has in large part been successful in delivering what it set out to achieve. This is a good outcome in a difficult governance environment”.

It goes on to state:

“DfID has made a positive contribution to political accountability and a relatively peaceful election and political transition with examples of effective public information, civic education and advocacy”.

In addition to governance, poverty and climate change we know that the challenges of migration, urbanisation, exclusion, radicalisation, terrorism and regional integration will all play out in Kenya.

There are many in Kenya who deserve our support through these challenges—the Nobel peace prize winner Wangari Mathai, the world renowned anti-corruption activist John Githongo, dedicated teachers, health workers, civil servants and civil society. We will remain committed beyond this election to the people of Kenya, to its vocal activists and its many silent heroes.

My Lords, I thank all noble Lords who have spoken. Your Lordships will have noticed that we have largely been singing from the same hymn sheet. I do not think the debate has been any the worse for that. The debate has been topical and timely, and I thank the House authorities for squeezing it in for us at short notice.

I thank the noble Lord, Lord St John of Bletso, particularly for his experience in rural areas. He is right; we must not be too negative. My noble and indefatigable friend Lord Avebury asked some penetrating questions on the Kroll report and made a very powerful point about the distortion of American aid under the current Government; let us hope that that will change soon.

The noble Baroness, Lady Verma, gave some stark warnings—perhaps a little too stark, but none the less fair I suppose—about how Kenyan industry has drifted from what was a very competitive position a few years ago.