Lords Chamber

asked Her Majesty’s Government:

What action they are taking to help refugees from the conflict in Iraq.

My Lords, we remain very concerned about the humanitarian situation of an estimated 2 million refugees in neighbouring countries and 2.2 million internally displaced people. We continue to work on improving security, which is the main cause of displacement and which also restricts access to assistance that could be provided by NGOs. In addition, we have targeted £15 million in 2007 and £132 million since 2003 directly to assist displaced Iraqis.

My Lords, I thank the Minister for that reply. I return to a Question I first raised in this House in April 2007: how many Iraqis who have been employed by the British as interpreters have now been resettled here? The local guidance being issued warns that places are limited and that the process may take until the summer of 2009. Is that the right priority to give to Iraqis who may be in danger of reprisal for no other reason than that they have helped this country?

My Lords, on behalf of my department and all the others, I express our gratitude to locally employed staff, whose vital contribution has assisted us and the Government of Iraq. As noble Lords are aware, two schemes were announced in October last year by my right honourable friend the Prime Minister and explained to this House by my noble friend Lady Ashton. The gateway refugee settlement scheme has already started. We have received 910 applications, of which 404 were rejected for showing no visible connection to British work. Ninety have been passed on to the Home Office, and 24 have been passed altogether. We estimate that the target cap of 600 is manageable, particularly because new forecasts show that there was a spike in December suggesting that the number will be adequate and manageable.

My Lords, there must be many Iraqi refugees in the UK who are here with exceptional leave to remain or other, more indeterminate, status. Is it the Government’s view that many will now return voluntarily? If not, how many have actually been forced to return? Is it the Government’s view that all parts of Iraq are now sufficiently secure for refugees to return, save in exceptional circumstances?

My Lords, we have a clear policy on asylum seekers. The numbers of applications from Iraq have remained relatively stable. We assess them on individual merit, according to the refugee convention and the European Convention on Human Rights. To give your Lordships a sense of the estimates of the people accepted and returned, for the first nine months of 2007 we had 1,105 applicants. One hundred and five were granted refugee status, 15 humanitarian protection and 70 discretionary leave. The rest have returned or will be returning. We make the assessments about return individually, to ensure that individuals are protected. Return is also based on our assessment, and on that of others, of areas that are safe, so that asylum seekers are returned only to such areas.

My Lords, in view of the fact that we are jointly responsible, with the United States, for the disastrous situation in which these 4.2 million people are displaced from their homes, does not the noble Baroness agree that we should cough up a larger proportion of the UNHCR’s appeal for 2008 than the measly 4 per cent we gave in 2007? Bearing in mind that only one in five of the 21,000 people whom the UNHCR put up for resettlement in 2007 was accommodated, and that another 20,000 are coming down the track this year, will the Government get together with our partners and make sure that the offers that we jointly make with them match the size of the need?

My Lords, I understand that the funds targeted appear disproportionately small, given the scale of the refugee situation, but I do not think that that takes into proper account the factors in Iraq. It is very difficult to identify Iraqi displaced people within the neighbouring countries and within Iraq because they get absorbed into the host community and are very hard to identify. Only 3 per cent of refugees and IDPs live in camps. As a result, we cannot provide assistance in the targeted way that the noble Lord is suggesting. The best way to provide assistance is to the whole community into which the IDPs and the refugees have been absorbed. We therefore think that the issue is about the reconstruction of the system in Iraq for basic services. Funding is therefore not a problem— there has been more than $30 billion of oil revenue in the past year, and less than a quarter of its capital budget was used. The issue is capacity. Of the £680 million that we have disbursed in reconstruction, our efforts go towards creating the capacity of the Iraq Government to provide services.

My Lords, following the sums of money mentioned by the Minister, what support or money is DfID offering to neighbouring states such as Syria and Jordan to assist with the Iraqi refugees?

My Lords, we provide our funding directly through UNHCR and ICRC because we believe that that is the best way to target refugees. However, we also provide assistance through the EC—for example, most recently, €30 million was provided for health systems in Syria.

My Lords, given the number of persecuted Christians who have left the country and are now in Syria, will the Minister confirm that the Government are making every effort to press on the Iraqi Government the necessity of preserving the right of Christians to worship and exist in Iraq?

My Lords, I agree that Christians and other minorities are a particular target of sectarian groups. They make up a disproportionately large number of refugees, and we continue to work with the Iraqi Government and neighbouring countries to ensure that they are allowed their rights.

My Lords, my noble friend mentioned the sum of £15 million for 2007 for 2 million refugees and 2.2 million internally displaced people. If my maths are correct, that works out at just under £4 a head. Can we look to a rather more generous settlement than £4 a head for refugees and internally displaced people in 2008?

My Lords, I believe that we can. However, I shall go back to my overlong answer, for which I apologise. The issue is to ensure that the host communities have access to services, not just the internally displaced people who have been absorbed into them. Therefore, our overall reconstruction funding of £680 million must be included.

My Lords, does the Minister agree that in the light of our shared responsibility for what has happened in Iraq, for the displacement of hundreds of thousands of people and for others who feel themselves in danger all the time, there really has to be a more generous response? Does she accept that if I were currently living in Afghanistan and asked to support or work with the British forces there, I would give very careful thought even to considering that, given my feelings about how those in Iraq had been treated?

My Lords, we have announced a package of assistance for former and current employees, including a direct entry scheme for all current employees and a financial package of assistance. It is interesting to note that the latter appears to be more attractive than entry into the UK for current employees.

My Lords, one major concern about the treatment of refugees and displaced people seems to be the lack of a co-ordinated approach from the United Nations, the operation coming partly out of Baghdad and partly out of Jordan. Is the United Kingdom in any position to help improve co-ordination of the humanitarian effort and, if so, what can we do?

My Lords, I agree with my noble friend’s observation that poor co-ordination and fragmentation have been a real problem. We have therefore successfully secured the post of a new UN humanitarian co-ordinator, at least partly based in Baghdad. We welcome the arrival of David Shearer, who has experience in the region, as well as in humanitarian issues. He will be launching his first consolidated UN appeal, involving NGOs, in mid-February. We have also managed to secure a pledge for increased UN staff in-country. Therefore, we hope that the centre of gravity is moving from Iraq to Amman.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I must declare an interest as having been a member of the Southwood working party, which was appointed in the early 1990s by the Government to advise on the implications for human health of the BSE epidemic.

The Question was as follows:

To ask Her Majesty’s Government whether they will promote, through the National Blood Service, clinical trials of the prion capture (P-CAPT) filter to assess the value of this device in the prevention of transfusion-induced variant Creutzfeldt-Jakob disease (vCJD).

My Lords, NHS Blood and Transplant has already initiated a number of studies to assess the efficacy of the P-CAPT filter in removing variant CJD infectivity from blood as well as the quality and clinical safety of blood once it has been filtered. These studies are ongoing. This approach is based on the advice that NHS Blood and Transplant received from the Spongiform Encephalopathy Advisory Committee and the Advisory Committee on the Safety of Blood, Tissues and Organs.

My Lords, I thank the Minister for that encouraging reply. Does he accept that three individuals have died as a consequence of variant CJD as a result of blood transfusion? The prion is not a bacterium; nor is it a virus. It is a small molecule of protein, which is infective, but which has a very long incubation period. I am glad to hear that these trials are being undertaken because this device has already received a European CE certificate and trials are under way in the Irish Blood Transfusion Service to try to prevent the death of any more individuals from infected blood.

My Lords, I am grateful for the advice of the noble Lord, who is a great expert in this field. The P-CAPT filter is an innovative product. However, I am sure that noble Lords will agree that the introduction of any new technology will be based on the efficacy and the safety of such technologies. We currently have three studies looking at the efficacy. We also have one safety study because the filter itself could create new antibodies that might harm the recipient patient. I also acknowledge the fact that Ireland has introduced the product in those cases where most of the recipients of blood are children.

My Lords, how safe are blood transfusions? Are more cases of variant CJD expected?

My Lords, any medical intervention carries risks; we are fully aware of that. However, as it stands at the moment, we have applied every technology available to us in screening blood for conditions such as hepatitis B, hepatitis C and HIV. The difficulty in this situation is that we do not currently have a screening test for variant CJD. As we are all aware, it is carried not by blood but by prions—most of which are concentrated in lymphoreticular tissue.

My Lords, will the Minister comment on reported remarks by the chairman of SEAC to the effect that the prion is not the infectious agent but merely a sign of infection?

My Lords, I am grateful for the noble Countess’s intervention. I agree with the analysis that, while abnormal prion proteins are considered to be the infectious agent, the precise nature of infectivity may differ from that of the prion alone. That was highlighted in an editorial in Science in 2007 by one of my colleagues, Professor Collinge.

My Lords, the diagnostic technique of protein misfolding cyclic amplification is being used to test for variant CJD in brain tissue. Are there any plans to introduce that test for blood—could it be effective? Will he explain what it is?

My Lords, I will spare the House a tutorial in molecular biology. However, the test is valid in lymphoreticular tissue. The same test has been used in examining biopsies of, for example, tonsils. The noble Baroness will be aware of the study currently being undertaken to screen 100,000 tonsils. I am delighted to report that 45,000 have already been screened and there is no evidence of any infectivity.

My Lords, is the Minister aware that the device in question has a CE mark, which means that it has European regulatory approval and therefore can be used quite legally now? Given that the Government have already conducted studies into the prevalence of variant CJD and found the risk high enough to implement leucodepletion, which, as the Minister will know, is not by any means 100 per cent effective, why is it necessary to undertake further studies which will only delay the implementation of effective prion filtration?

My Lords, I am grateful for the noble Earl's intervention. CE marking does not necessarily mean that a product has been through effectiveness or efficacy studies. We are carrying out a study at the moment based on a recommendation of the Spongiform Encephalopathy Advisory Committee, which suggested that an identical study to the one carried out by the manufacturers should be independently carried out by the NHS.

My Lords, I understand that the number of new cases of variant CJD each year has now reduced to a trickle. However, Professor Collinge, whom the Minister mentioned a moment ago, has suggested that there may be future second and third waves of the disease. What is the Government’s attitude to that suggestion? If they accept Professor Collinge’s proposition, how will that affect their attitude towards risk management, including blood transfusion?

My Lords, we have had 166 infections for variant CJD, the peak of which was in 2000, when there were 28 cases. I am delighted to report that last year we had only one infection. The noble Lord referred to the genotype of these infections, most of which have been of the MM variety. There has been a recent scientific dispute about whether one case is of the VV variant. Scientists continue to disagree about whether that case is one of sporadic CJD or variant CJD. At the moment, as it stands, the registry in Edinburgh considers that the VV case is sporadic rather than variant CJD.

asked Her Majesty’s Government:

What value of loans they have extended under the new integration loans for refugees; and what steps they are intending to take with regard to any arrears or defaulting payments.

My Lords, the value of loans paid out under the integration loan scheme for refugees and others from 11 June, when the scheme was launched, to 31 December 2007, is £134,000. Loan payment and recovery is undertaken by the Department for Work and Pensions on behalf of the Home Office and the usual DWP enforcement procedures will apply where there is no compelling reason why loan repayments cannot be made.

My Lords, I am grateful to the noble Lord for that response, but does he not share a little of my disappointment at the apparent lack of take-up of this facility? It struck me at the time as one of the most enlightened and intelligent pieces of regulation put through by this Government. It shone out like a good deed in a naughty world. I hoped it would have had a much bigger take-up than we have seen. What percentage of applications received might that figure be, assuming that they have all taken £1,000 per head, which was allowed? How many have been declined?

My Lords, the noble Lord is absolutely right: this was a very good scheme, debated in the House, and we expected a much higher rate of take-up. This has been accelerating since last June, when the scheme initially came in. So far we have had 562 applications, of which 198—that is, 35 per cent—have received a loan. A number are awaiting receipt of signed loan agreements. It is not quite clear why there has not been bigger take-up, because this is very useful in enabling those who, almost by definition, are disadvantaged to integrate into our society.

My Lords, what was the Government’s response to the Merits Committee’s criticism of the scheme that it would be difficult for recipients to pay back even an amount as small as £3 per week, when it came on top of other deductions from benefits? Now that the Government are determining asylum applications within a maximum of six months, would they agree that £100 of every grant made under this scheme should be in the form of a grant, rather than a loan, over the six months?

My Lords, the £3 per week taken from income-related benefits is a very reasonable amount. One can look at the circumstances and that could be adjusted if necessary. As regards getting back payments and loans, I was very concerned at the thought of using debt collection agencies; indeed, I was grateful for the question that was raised. There are very clear rules for the use of debt collection agencies. I am convinced that, when necessary, we can remove the need to pay back for a period, as long as the loan is repaid within five years.

My Lords, could the Minister tell us what advertising is done regarding these grants or loans? There seems to be pretty poor take-up so far. How are they advertised to refugees and people who are entitled to stay here? Is that done by the DWP, or is it done more generally?

My Lords, the noble Baroness raises a very good point. I do not know the exact details, but we have a very good system for helping people integrate into society. They are taken care of by around 300 caseworkers, who look after cases around the country. I am sure that they would give them the details, but I do not know the precise answer, so I will have to come back to the noble Baroness on this in writing, if I may.

My Lords, I am informed—and I ask the noble Lord if this is correct—that people applying for asylum are told about this scheme. If that is so, for how long after that do they have the right to apply for a loan?

My Lords, I am glad to hear that they are told about the scheme as they apply for asylum. This partly answers the previous question, although I will still write in answer. Exactly how long they have thereafter to make the claim, I do not know. I will get back to the noble Baroness in writing on that, if I may.

My Lords, with reference to debt collection agencies, could the noble Lord tell us what it would cost, per person, to collect a loan of £1,000 that had not been repaid?

My Lords, I am afraid that I do not have those facts at my fingertips. I know that the DWP uses the four debt collection agencies that it uses more widely in recovering debts. If I can get that answer from the department, I may come back to the noble Lord in writing on the details.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so—

My Lords—

My Lords, I think we missed the second part of what the noble Lord, Lord Campbell, was saying.

My Lords, I declare an interest as a member of the all-party group on defence.

The Question was as follows:

To ask Her Majesty’s Government whether they will reconsider the allocations for three years to the Ministry of Defence, the Foreign and Commonwealth Office and the Department for International Development rising from £5.4 billion to £7.9 billion to alleviate concern as to the availability of requisite funding for the Armed Forces and counterterrorism.

My Lords, I apologise; I was clearly eager to respond positively to the noble Lord. The 2007 Comprehensive Spending Review set out the Government’s priorities and spending plans for the years to 2010-11. These plans are fixed and will not be reopened. Planned spending on defence will rise from £32.6 billion in 2007-08 to a total budget of £36.9 billion by 2010-11, demonstrating the Government’s continued commitment to the Armed Forces. The budget of the Foreign and Commonwealth Office will rise also, from £1.6 billion to £1.7 billion in the same period.

My Lords, I thank the noble Lord for his response and respectfully ask if he is aware that this does not address the concerns of Sir Richard Mottram, the former Permanent Secretary at the MoD, chairman of the Intelligence and Security Committee and co-ordinator of government intelligence and security? The Times reported on 30 December that he said in his Demos lecture that DfID expenditure should be used to its “maximum effect” on defence and counterterrorism.

My Lords, the Government agree that expenditure must be used to its maximum effect; that is why this defence expenditure provides two new aircraft carriers for the Navy, protected vehicles for the Army and additional air transport capability for the Royal Air Force—as well as, within the Foreign Office budget, increasing expenditure that will help in broader counterterrorism activities. These points were, of course, debated and taken into account before the spending plans were decided upon last year.

My Lords, would my noble friend confirm that the second largest percentage increase in budget after DfID went to the intelligence services, which lead the fight against terrorism? Will he also confirm that DfID’s work to eliminate poverty around the world helps to reduce the likelihood of conflict and terrorism?

My Lords, of course my noble friend, with his vast knowledge of these matters, is absolutely right that we have made provision in the budget for the reduction of poverty, which is an important part of the general battle against terrorism. As he indicated also, there is a substantial increase in the single security and intelligence budget, which will rise to some £3.5 billion by 2011—more than three times what we spent on these matters before 9/11. The Government are giving proper priority to this important work.

My Lords, can the Minister explain why the Government have let defence spending fall to its lowest level since 1930, as a percentage of GDP?

My Lords, I do not think that defence spending has fallen below that of 1930; it is massively above the spending of the Conservative Government’s last decade in power—the late 1980s and early 1990s. The simple fact is that defence expenditure is falling, if the noble Baroness meant in relation to the rise in GDP, first, because the rise in GDP is proceeding significantly, and secondly, our percentage drop against GDP is in line with all other advanced countries, including the United States of America.

My Lords, is the noble Lord aware that the Foreign and Commonwealth Secretary said two weeks ago that one-third of our diplomats in Europe are to be moved to the Middle East and Asia? While there may be a need for more in the Middle East and Asia, given the troubles there, is it not doubtful wisdom to reduce our diplomats in Europe by one-third?

My Lords, as I indicated in my Answer, there is increased expenditure on the Foreign Office’s budget, but its priorities change significantly from time to time and the noble Lord will recognise that there is an immense need to increase our capacity, ability and representation in the Middle East in areas where we are all too well aware that real difficulties manifest themselves. He will, no doubt, have heard this morning the extremely able way in which our ambassador to Afghanistan responded to the issues confronting the Government there, reflecting the enhanced status of his role in the country—a properly enhanced status, given the significance of Afghanistan to world security.

My Lords—

My Lords—

My Lords, can the noble Lord assure us that adequate provision of resources for our Armed Forces, for the Foreign and Commonwealth Office in this respect, and for counterterrorism will remain a priority over other expenditures?

My Lords, I apologise on behalf of my noble friend the Chief Whip for intervening on the noble Lord, Lord Campbell of Alloway, for the second time today between the two of us.

The noble Lord is right: defence expenditure is bound to be a very high priority. He will appreciate that we need to guarantee the security of our country in troubled times. He will also recognise that we have provided in the budget additional resources for the period up to 2010-11.

My Lords, at a convenient time after 6.45 pm, my noble friend Lord Davies of Oldham will repeat a Statement made in another place on Northern Rock.

In response to observations that we have had from all sides of the House about the normal conventions of debate at different stages of Bills, I remind the House that, when we come to debate the Human Fertilisation and Embryology Bill, the advisory rules for debate from the Companion state that,

“Arguments fully deployed in Committee of the whole House should not be repeated at length on report”.

My Lords, I beg to introduce a Bill to amend the House of Lords Act 1999. I beg to move that this Bill be now read a first time.

Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

My Lords, I beg to move that the Bill be now further considered on Report.

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

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

moved Amendment No. 30:

My Lords, I have added my signature to Amendment No. 30, which stands in the names of the noble and learned Lord, Lord Lloyd of Berwick and the noble Baroness, Lady Finlay of Llandaff.

Last week, I moved an amendment expressing my opposition in principle to what are called “saviour siblings”. The majority of noble Lords disagreed, and of course I accept the decision of the House. However, in the debate, even supporters of the practice expressed strong reservations. In view of the fact that the Government are determined to press ahead with what many think are excessively broad parameters, it is surely right for Parliament to set more reasonable limits on procedure.

There was much debate in Committee about the sorts of illnesses for which tissue-typing could be licensed. The term “serious medical condition” is, as the noble and learned Lord, Lord Lloyd of Berwick, said simply too broad and vague to be a sufficient safeguard in this highly controversial area. No doubt some would say that the regulator—the Human Fertilisation and Embryology Authority—will reject spurious applications for a licence, but that is putting yet another onus on the HFEA. If it is to be done, it should be reflected in the Bill itself. Amendment No. 30 does that by requiring the existence of “serious and potentially life-threatening” medical conditions.

The chairman of the Joint Committee, Phil Willis, suggested in an interview that autism might be considered “a serious medical condition” in this context. While I would never wish to minimise the significant difficulties that autism presents, it is not a condition for which the production of a tissue-typed child should be the solution. The inclusion of the phrase, “potentially life-threatening”, will prevent such applications and help to ensure that future practice does not stray into creating children to treat other relatively minor illnesses. I urge noble Lords to support Amendment No. 30.

Perhaps I could briefly intervene as the noble and learned Lord referred to my amendments, which follow in a later grouping. I understand why he did so. The reason I felt it appropriate to try to encapsulate in those amendments a definition of “serious” was the very one alluded to by the noble and learned Lord; that it is a vague term. I was uneasy about leaving it undefined in the Bill. I shall explain later why I framed my amendments in the way that I did.

The reason I am not drawn to the noble and learned Lord’s amendment is that there has to be some flexibility for the HFEA to decide upon each case on its individual merits. That presupposes an element of subjectivity, which is why I do not apologise for the phraseology I have deployed in my amendment. It is deliberate because Parliament should not be too prescriptive in what it tells the HFEA it should do. There could be meritorious cases which do not quite fall into the category of life-threatening. I felt I should just explain to the House why consideration should be given to my amendments when we come to debate them, even though we are not debating them at this precise moment.

My Lords, to anyone lying in a bed with a doctor leaning over them saying, “You have a life-threatening condition” the meaning is entirely clear. We would all appreciate exactly what that meant. Equally, if some doctor leant over any one of us and said, “You have a potentially life-threatening condition unless you do X or forestall doing Y”, we would all understand that. Yet if a doctor were to say to one, “You have a serious condition”, that could be interpreted in a great number of ways, meaning giving up a bit of that or doing a bit more of the other, with an unclear end to it. The amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, has exact clarity, which he quite rightly says that we in this House should always aim for. We should never—my words, not his—legislate for that which we cannot define. We can clearly define “life-threatening”; we can also with equal clarity define “potentially life-threatening”. However, it is extremely hard to define “serious” in a way that would satisfy all noble Lords.

My Lords, I am reluctant to detain the House, but as my name has been mentioned perhaps it is appropriate that I just respond briefly to the noble and learned Lord, Lord Lloyd. I spoke on the notion of “serious” as against “life-threatening”, with the views I expressed largely based on the Orthodox Jewish position. I am an Orthodox Jew, and your Lordships may know that we take a particularly serious view of termination of pregnancy; of abortion. Abortion is only permitted under fairly strict conditions; that is, those that are life-threatening. It is obviously not for me to offer a rabbinical discourse, but I understand that most Orthodox rabbis would regard an abortion appropriate where something is life-threatening and not generally, for example, for social reasons.

The rabbinical view—one that I share—is that “life-threatening” includes things which involve the quality of life in some cases. What troubles me particularly about “life-threatening” is whether we might include conditions where there would be serious mental handicap. In practice, of course, virtually all genetic diseases, with one or two notable exemptions, are serious and life-threatening. Yet there might be a situation in which a serious mental disorder—I cannot think of one; perhaps the noble Lord, Lord Walton, can—might be so regarded. That troubles me a little bit about this amendment. Otherwise I do not see a problem, one way or the other.

I am not sure that the noble Lord, Lord Patten, is quite right about clarity. You cannot have complete clarity. As the noble Earl, Lord Howe, says, this is a matter for decision at the time of the clinical involvement. To some extent, we have to make sure that that is done properly, but also in good faith.

My Lords, my noble and learned friend mentioned my name, too. I have not changed my mind. The saving word in this amendment is “potentially”. It does not indicate that the condition must be life-threatening, but it may be potentially life-threatening. That is sufficient qualification for me to feel able to support this amendment, despite the excellence of the wording of the one tabled by the noble Earl, Lord Howe, to be discussed later.

My Lords, I, too, raised this in Committee. Bearing in mind what was said earlier, I will certainly not be repetitious. I spoke in the debate last week when the noble Baroness, Lady O’Cathain, moved her amendment to stop tissue-typing in the first place.

The amendment is a very good attempt to try to place something restrictive in the Bill on what, as the Minister, the noble Lord, Lord Darzi, has himself said—he did so in a letter that has been sent to some Members of your Lordships' House today—should only ever be used in some difficult and probably unusual circumstances. This will not be a regular procedure. That is why my noble friend Lord Walton of Detchant, who has particularly applied his mind to this question, is right to tell us that the words would be capable of better interpretation than something more vague.

The noble Lord, Lord Winston, referred to the issue of termination of pregnancy. I remind the House that, in that context, one can cite the example of the use of cleft palates as a ground for abortion up to and even during birth. It has been used. Noble Lords will remember the case of the Reverend Joanna Jepson, who took a case to the courts. The word “serious” was the justification for permitting that, whereas if the provision had been “life-threatening” or “potentially life-threatening”, I do not believe that that could have occurred. For those reasons, and those that I expressed previously, I strongly support the amendment in the name of my noble and learned friend Lord Lloyd of Berwick.

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, who moved the amendment, referred to the view that I expressed in Committee, based on the recommendation made by the Joint Committee, having heard evidence from a number of experts. I think that I have changed my mind. Merely to have the word “serious” is not enough. I listened to the debate in Committee and I have listened to what noble Lords have said on both sides and all parts of the House. We need something more.

My difficulty is that, although one is attracted by the simplicity of the amendment proposed by the noble and learned Lord, Lord Lloyd—I also agree that the word “potentially” is a very valuable addition to the circumstance—I also have sympathy with Amendment No. 33A, tabled by my noble friend, which goes on to refer to,

“impairing severely the quality of life of a person with the disability, illness or condition”.

I find it very difficult to choose between the two. We have not heard in full my noble friend’s arguments for his amendment. We have heard a number of speeches that have supported the amendment proposed by the noble and learned Lord.

If I decide not to vote on the amendment proposed by the noble and learned Lord in order to wait to hear the arguments, I feel that we have rather missed the point. I find that a rather difficult decision. They seem to stand as alternatives; they cannot stand together. I suppose that we could reach the position where there was uncertainty as a result of decisions on Report. That may give us sufficient grounds to have a clarifying amendment on Third Reading. I know that the House authorities are very restrictive on what one may table on Third Reading, but that seems possible.

I say this with some diffidence, without having heard my noble friend's argument in full, but I am very tempted to vote for the noble and learned Lord’s amendment because it is an improvement on what is in the Bill. As the noble Lord, Lord Alton, said it includes the important word “potentially” before the words “life-threatening”, and it meets many of the points made to the Joint Committee, to which I referred in Committee debates. On balance, for the moment, although I will listen to the arguments made in the rest of the debate, I feel inclined to support the noble and learned Lord.

My Lords, I share some of the confusion about process expressed by the noble Lord, Lord Jenkin. I should like to hear what the procedure will be if the amendment in the name of the noble and learned Lord is passed. Does that mean that the amendment in the name of the noble Earl will fall? What happens if both are passed?

My Lords, it is worth pointing out that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, does not delete “serious”; it only adds “and potentially life-threatening”. In view of his explanation, I doubt whether there is anything potentially life-threatening that is not also serious. Anyway, he has not taken out “serious” and the result is that amendment of the noble Earl, Lord Howe, which explains the meaning of “serious”, can be adhered to by the House. If the amendment of the noble and learned Lord, Lord Lloyd, is passed, it does not rule out the amendment of noble Earl, Lord Howe, when it is voted on.

My Lords, I can understand why the noble and learned Lord, Lord Lloyd of Berwick, has introduced the amendment. However, is it possible to think of conditions that are serious, but not life-threatening, which one would want people to carry on with? There are conditions that are serious but are not necessarily life-threatening. If a child has a cleft palate, very few people would regard that as sufficiently serious or life-threatening; it is possible to have that as part of a syndrome in which the child is badly deformed, deaf and has all sorts of associated anomalies, yet that serious condition is not normally life-threatening. I am not sure the amendment is quite right.

My Lords, I am grateful to the noble and learned Lord, Lord Mackay, for explaining in procedural terms the implications of the amendment. He is correct to say that, should the amendment be passed, we would move forward, discuss, debate and possibly vote on the amendment tabled by the noble Earl because “serious” is retained.

Testing for the purpose of determining tissue type can be done only when the sibling suffered from a serious medical condition that could be treated with umbilical cord blood stem cells, bone marrow or other tissue of any resulting child. A government amendment to be discussed shortly will limit that to exclude whole organs. This amendment introduces “and potentially life-threatening” after “serious” and would mean that embryo testing could be carried out only if the serious condition that the sibling suffered from was also potentially life-threatening. Therefore, this amendment introduces a higher test, as noble Lords have acknowledged. That higher test would mean that the HFEA would not be able to license treatment of a condition that had a significant impact on the life of the sufferer and which was serious but not necessarily potentially life-threatening. It is expected that most conditions for which tissue typing would be licensed for would be life-threatening, very serious conditions—and all the handful of cases licensed for that purpose to date are so.

These decisions are not entered into lightly, either by the parent or by the regulatory authority. The licensing decisions made have involved very serious blood conditions and have been undertaken as a last resort. The HFEA has licensed tissue typing for three conditions: aplastic anaemia, Diamond Blackfan anaemia and beta thalassemia. These conditions can be treated with the use of bone marrow or cord blood from an appropriate donor. In most cases this would be either from a family member or a matched donor on the worldwide bone marrow register. However, where there is no match either in the family or on the whole register, as a last resort it is possible to test sibling embryos to see whether they would have a matched tissue type.

I note the important points made by the noble and learned Lord, Lord Lloyd of Berwick, and others. As many have acknowledged, we originally proposed, when the Bill was published in draft, to restrict these decisions explicitly to life-threatening cases. That draft Bill was amended following scrutiny by a Joint Committee. One change made to the Bill on the recommendation of the committee was that the wording in relation to tissue typing should be amended so that the term “life-threatening” was replaced by “serious”. We have heard views today and in Committee that it would be more appropriate if this were limited to life-threatening or potentially life-threatening conditions, and we acknowledge those views. As I promised in Committee, I have reflected on this and discussed it with both colleagues and officials, but I am of the view that by retaining the word “serious”, we will allow for any such conditions that in the future could be identified as potentially treatable by cells from a tissue match donor.

In addition, by retaining “serious”, we will ensure that the legislation is as future-proof as possible. The HFEA will consider every condition for which tissue typing is proposed and will provide guidance on this in its code of practice. Taking these factors into account, and to ensure that the Bill is as future proof as possible, we intend to keep the wording as it is in the Bill, and I invite the noble and learned Lord to withdraw his amendment.

My Lords, would the noble Baroness like to provide us with a definition of the term “future proof”?

My Lords, as the noble Earl pointed out earlier in his intervention, we believe that there should be some flexibility for the HFEA to decide. Further, there may be some conditions of which we are not aware at the moment, although science is moving on apace. That is how I define “future proof”.

My Lords, I am grateful to the Minister for her reply to this amendment, but regret that I am not satisfied with the argument that the word “serious” on its own, without the addition of some reference to a threat to life, is adequate. In my view it is still much too broad.

As regards the amendment of the noble Earl, Lord Howe, while I understand entirely his desire to include quality of life, I have to say that he has not yet persuaded me—he might do so—that it is sufficiently precise to be put in an Act of Parliament. And in response to those who have a problem about which amendment to support, I suggest that, not for the first time, the noble and learned Lord, Lord Mackay, has produced the solution. Strictly speaking, if this amendment is passed it will be possible for the noble Earl, Lord Howe, to move his amendment because the word “serious” would still remain in the definition. It may require some tidying up, but that could be done on Third Reading.

Given that, I believe that there is sufficient support for the amendment for me to test the opinion of the House.

moved Amendment No. 31:

My Lords, I raised this matter last November with the Government. At that time, as the noble Lord, Lord Darzi, will recall, when he replied to my Written Question it was the Government’s intention to include whole organs in the Bill. I am grateful to him and to the Government for making some change in this area, but I still have some reservations and I would be grateful if the Minister, when she responds to this brief debate, could say something about what will happen in the case of parts of organs. In Committee and at the earlier stages of Report I raised the issue of what happens if part of a liver or part of a lung is taken, and whether the Bill will permit that to occur.

The noble Lord, Lord Darzi, kindly sent to a number of noble Lords a letter dated 21 January that sets out a series of useful points about this question. Does the Minister agree that it would a good letter to place in the House Library so that all noble Lords would be able to read it? In that letter the noble Lord says:

“Several noble Lords have proposed the term ‘regenerative tissue’ could be used in this context. If this term were used, it might explicitly exclude the use of cells of the umbilical cord that we are trying to capture as these may not be considered to be regenerative”.

There is no difference between anyone in this House about the desirability of using umbilical cord. Many of us have made the point that to routinely destroy 98 per cent of all cord blood, as we do in this country at this time, and to have only four National Health Service hospitals collecting cord blood is itself something that we need to address. I hope the noble Baroness will say a word about that and consider again, before the Bill goes to another place, whether it might be possible to specifically exclude umbilical cord and refer to that in the Bill, and to include “regenerative tissue” as distinct from those things that, once taken, might not properly regenerate. There are levels of morbidity and mortality associated with the removal of parts of organs, let alone whole ones.

My Lords, I intervene briefly to thank the noble Baroness for having considered this issue so carefully and for bringing forward this amendment. It is very welcome but, as she rightly said, it addresses only part of the concern that was the focus of our debate in Committee. Any decision on whether an organ may or may not be transplanted from a child falls outside the scope of the Bill and is the province of the Human Tissue Authority, based on the merits of each case put to it. While the amendment is decidedly welcome, so far as it goes, because it would prevent embryo testing with a view to carrying out a whole organ transplant, it does not, of course, address whether such an organ is actually transplanted in practice. I am sure that I speak for many of your Lordships when I say that I am grateful to the Government for their consideration.

My Lords, I support the amendment, which is very welcome in the light of our debate in Committee. At that time, I was concerned about the point that my noble friend Lord Alton made about part organs; I was even tempted to suggest that the amendment should include part organs. Then I realised, of course, that some of my own research has been in the field of muscle disease and I suppose that taking a tiny sample of muscle by a needle biopsy could be construed as taking part of an organ. For that reason, I think that the amendment is better as it stands and no attempt should be made to include part organs in it, even though we all have concerns, as my noble friend Lord Alton said, about taking part of a liver or a lung. This is a welcome amendment which I warmly support.

My Lords, I am grateful to noble Lords for their broad support. We would be delighted to place a copy of my noble friend’s letter in the Library of the House. With regard to parts of an organ, the Bill has been drafted in this way to allow the use of cells of the umbilical cord or, for example, if it were possible in the future to treat conditions with cells cultured from a small biopsy from the liver or any other organ. The noble Lord, Lord Walton, has clearly explained other potential uses of regenerative tissue.

On Question, amendment agreed to.

[Amendment No. 32 not moved.]

[Amendment No. 33 had been withdrawn from the Marshalled List.]

moved Amendment No. 33A:

My Lords, I regret that, because of circumstances completely beyond my control—rain and trains—I was unable to be here for the first amendment. However, I would like to speak to this amendment which is extremely carefully and well worded. One of the difficulties that we have is that the law lays down a black and white division between what you can and cannot do and in medicine we deal in shades of grey right across the spectrum. I will confine my remarks about this amendment to saviour siblings, although I think it applies equally well and is needed just as much at other points in the Bill.

The difficulty is that what is serious to one person is not serious to another. Medical science is moving on very rapidly and we are now making legislation that we will not revisit in the near future. I will use as an example a condition for which at the moment there is no talk of saviour siblings, so this is blue-sky thinking—psoriasis. Overwhelming psoriasis that affects the whole of a person's skin can be a devastating disease, but psoriasis can amount to a few plaques on a person’s elbows and knees. That disease has responded dramatically to the new biological drugs, which suggests that it may be possible in the not-too-distant future to use stem cells in some way in an infant who clearly has that terrible disease. But you have to define how bad it is to warrant a saviour sibling. You will have to be able to say that it is not just “serious” but “life-threatening” as well. Are you going to create a life because it may be a more convenient way of treating the disease, even though there are other ways of managing it, which may be expensive?

The other difficulty with “life-threatening” is that you cannot wait until the child who is ill is actually dying: you need to think about the saviour sibling concept earlier. The amendment addresses that neatly and beautifully. Without it, I fear that the line may shift and shift until there is increasing pressure to go for aesthetic biological perfection rather than being able to accept the broad spectrum of humanity. Surely, we should be considering saviour siblings only when a condition really is life-threatening and there is strong evidence that without a saviour sibling the child will die.

My Lords, I very much welcome the amendment in the name of the noble Earl, Lord Howe. Before coming to my reason for that, I address his point about delays, to do with PGD, to applications being considered by the HFEA. I hope it will help the House if I indicate that it probably was true when PGD first started. It took quite a long time to go through the system, because each condition had to be considered on its own. The present policy is that once a condition has been licensed in principle, and the laboratory has a licence to carry out PGD, the whole process is speeded up. They do not have to consider again on an individual, case-by-case basis. Something like 70 conditions, some of them very rare, have already been licensed in principle.

That said, I believe that the amendment of the noble Earl, Lord Howe, will make the job of the HFEA easier. It could potentially speed up the process further. As he has already indicated, there is an element of judgment involved. We cannot be precise on this, but the phrase,

“impairing severely the quality of life of a person with the disability, illness or condition”,

seems to set down a criterion that will make it easier for the HFEA to exercise its judgment when these applications come before particular licence committees.

My Lords, I feel rather happier with this amendment than I did with that of the noble and learned Lord, Lord Lloyd. There are a couple of things I that would like to say, which are, I think, highly relevant. I do not entirely agree with the noble Baroness, Lady Finlay, about one issue. I do not believe that medical practice and research are progressing so quickly that we cannot establish basic ethical rules about how we manage things in law and regulation. Things are not moving that quickly. It is very obvious in the case of pre-implantation. After all, as I mentioned the other day, the first child is now coming up for 18. It is quite a long time, in which only a handful of diseases have been regulated and passed through the guidelines of the HFEA, which brings me to my second point.

It is not entirely desirable to have every disease process regulated in quite the way that the noble Earl, Lord Howe, suggests for one very good reason. There is a much greater expert on muscular dystrophy than myself in this House: the noble Lord, Lord Walton. The defect in the dystrophin gene is found in somewhere between 2.25 million to 2.5 million letters of the DNA alphabet. There are at least 400 or 500 different misspellings that can cause a form of muscular dystrophy, and those different muscular dystrophies will have different prognoses. Some will lead to relatively minor weakness, with a good chance of longevity. Others are totally devastating.

Lesch-Nyhan syndrome is a much rarer disease, which affects only boys. No single family in the United Kingdom has precisely the same mutation as another; everybody has a slightly different mutation. The manifestations of that disease can be absolutely devastating. These children may frequently expose themselves to damage. They mutilate themselves; they bite their tongues off; they often have to have their teeth extracted to prevent that happening, in case they die of the infection. It is the most brutally revolting disease, which I will not describe in detail because it really is that unpleasant.

Even with cystic fibrosis—perhaps the most common disease that is a recessive disorder—the nature of the mutation makes a very big difference to the quality of life afterwards. Therefore, the idea that permission should be given in each case is not terribly useful. There has to be a degree of latitude in how this is done and, in many ways, the proposition in the amendment of the noble Earl, Lord Howe, fits the bill beautifully. In some mutations one might say that screening is not suitable but in others it clearly is.

My Lords, it is with some regret that I oppose this amendment, because, having heard what noble Lords have said about it, I can see distinct advantages in it. It may be that doctors can come to understand what is meant by “quality of life” rather better than lawyers and judges. When I was a judge and I had to decide whether a very young baby or, at the other end of the spectrum, a severely ill elderly person should be given treatment to keep them alive, I and the judges of the Court of Appeal, of which I was once a member, were, where possible, extremely careful not to use the phrase “quality of life”.

As the noble and learned Lord, Lord Lloyd, said, that is a highly subjective phrase. What for some people would be a way of life that they absolutely could not endure would, for other people who had to endure it, be something worth living. Some people might be suicidal having, for instance, very severe back injuries which make them tetraplegic. Others live as tetraplegics with a quality of life that would be astonishing to most of us in this House, I suspect. Therefore, it may be that the medical profession can work out what quality of life is, but I give a word of caution and am extremely unhappy about the amendment, although I recognise the advantages of it that others have mentioned.

My Lords, as has been said, the Joint Committee recommended the change from “life-threatening” to “serious”. As a member of that committee, I thought that that was a reasonable suggestion in the circumstances. The kind of considerations mentioned by the noble Lord, Lord Winston, on this amendment, and by the noble Lord, Lord Turnberg, on the previous amendment, seem to go towards a definition of something that was not necessarily life-threatening but was still very damaging to the health of the person in question. Therefore, so far as I was concerned, that was what “serious” meant. After all, it is an ordinary word of the English language and there is a limit to the extent to which it is right to define ordinary words; but, as some of your Lordships have pointed out, “serious” has been used in a context that has led to a surprising result by including something that some noble Lords would not be prepared to include.

So the suggestion is that “serious” is too vague to be allowed to stand alone in an Act of Parliament. If that is the case, we must look to see whether we can produce a better definition, as my noble friend Lord Howe has suggested. When I read the amendment, I thought it was pretty much like what I had in mind when we changed “life-threatening” to “serious”. However, the noble and learned Baroness, Lady Butler-Sloss, with her great experience of the judicial art, has said that lawyers stand away from, and do not wish to define, the phrase “quality of life”, and refrain from using it when giving their reasons for judgment.

I was wondering whether, perhaps, “health” might do instead. We cannot make such an amendment at this stage, but if the principle of this amendment were acceptable to the Government, as I sincerely hope it will be, it would be possible to refine it a little further. But the idea that trivial impairment to health would qualify as “serious” certainly never entered my head at the time of the Joint Committee’s deliberations. If, as has been said in relation to the earlier amendment, a definition of “serious” is required, I cannot think of anything much better than this fitting the context—except, possibly, with the substitution of “health” for “quality of life”.

My Lords, I should like to add to the points raised by my noble friends behind me about the quality of life. I think it is dangerous when one person judges another’s quality of life. I speak as president of the Spinal Injuries Association. I have heard nurses say when they have seen a tetraplegic—generally a young man—paralysed from the neck down, in head traction, “Oh, he would be better dead”.

Tetraplegics have recovered to live a certain life that other people should not judge. I have seen many of them, and what is important is their judgment of their quality of life, which can be really remarkable. It is quite dangerous for other people to be God.

My Lords, I was not very happy with the expression “quality of life”, for the reasons I have tried to explain. They have been rather reinforced by my noble and learned friend Lady Butler-Sloss. But once again, I am attracted by the solution produced by the noble and learned Lord, Lord Mackay. Is there not a way in which we can pass this amendment now, and then somehow, by agreement, substitute “health” for “quality of life” at Third Reading?

My Lords, I agree profoundly with the noble and learned Lord. I was graciously accommodated at Stoke Mandeville, a spinal injuries hospital, in order to be near to my wife—although I had only one fractured vertebrae which nobody noticed until later. I saw a number of cases there where people with severe spinal injuries—such as tetraplegics—would simply turn their face to the wall and die. The injuries that they had received were not, in themselves, life threatening, but the psychological effect upon the patient made them feel life threatening—they simply pulled up their roots and died. Others got on with life. Who is to say who was right in all those circumstances?

The only conclusion I would draw from that is that it is extremely difficult for us to arrive at a perfect form of words which will make it utterly clear to those who are dealing with it in future—perhaps in circumstances which we have not envisaged—what they should do. In the words dreamt up by my noble friend Lord Howe, we have a workable piece of legislation. I hope that we will accept it in that light. If anybody finds something better, perhaps it could be added—either here at Third Reading, if procedure allows, or in the other place.

My Lords, having spoken in favour of the earlier amendment which was rejected by the House, I am slightly uncomfortable in speaking to this amendment moved by the noble Earl, Lord Howe. Nevertheless, it is attractive in many respects. I agree that the concept “quality of life”, despite the efforts of the healthcare economists to define what they term QALYs—quality adjusted life years—is not an attractive one, and I understand entirely the views of our judicial colleagues.

When I chaired the House of Lords Select Committee on Medical Ethics in the 1990s, we had to look at issues of terminology. We dismissed the idea of “quality of life” but came up with “health and well-being”, as the noble and learned Lord, Lord Mackay, has just suggested. That is an alternative which ought to be very seriously considered because, in general principle, the amendment has many attractions.

My Lords, I, too, was a member of the pre-legislative scrutiny committee, and I support the position of the noble and learned Lord, Lord Mackay. I think that he took the temperature of the committee very well when he said that by using the word “serious” we meant to incorporate the essence of the amendment of the noble Earl, Lord Howe. From the discussions that we have had on both this amendment and the previous one, it is clear that the difficulty is with the elusiveness of such vocabulary in the Bill, which may generate debates among lawyers and so on about precise meanings. Can my noble friend help me here? Can she say—the noble Earl, Lord Howe, might agree with her—whether an appropriate way forward might be to incorporate the definition in the form of statutory guidance either to the HFEA or from the HFEA to practitioners so that the substance of what is meant by the word “serious”—effectively, “severe”—is available without being included in the Bill in a way that gives rise to some of the hesitations that have been expressed?

My Lords, perhaps I may make an arcane procedural point regarding the position if your Lordships are unable to come to a conclusion about the best formulation at this stage and if the procedures of the House forbid a return to this matter in full at Third Reading. Noble Lords should bear in mind that, if they include something in the Bill with which they are not fully satisfied and it is cast out in another place, they can then debate it and offer something in substitution so that they get another bite at this cherry, whereas if they and the other place do nothing, the matter is closed.

My Lords, as we have heard, there is no definition of “serious” in the legislation. A definition was not included in the Bill in order to allow the HFEA and clinicians appropriate levels of flexibility within which to make licensing decisions, while ensuring that it would be allowed only for medical conditions that are considered to be serious. The HFEA would continue to provide guidance on embryo testing and on the criteria that it would take account of when making decisions about such testing. It would be expected that part of the guidance would include consideration of words such as “serious” in the legislation.

The Government entirely understand the noble Earl’s concern to define more closely the scope of decisions that may be made in this area. In fact, the draft Bill included further criteria which attempted to define that more precisely. However, the Government have given this further, very careful consideration and have taken on board comments from a range of stakeholders.

The term “serious” is used in several places in the Bill—notably in relation to the granting of embryo research licences for the study of serious disease. The HFEA is given flexibility within those limits—drawing on both its own expertise and the results of regular consultation—to make decisions taking account of all relevant factors. The Government believe that that should be the case here also.

There is currently no reference to embryo testing in the 1990 Act. Therefore, by including in the Bill the purposes for which embryos can be tested, we are introducing more stringent requirements than are currently in place. Because of the regulatory oversight from the HFEA and further guidance relating to embryo testing in the code of practice, we do not consider a definition of “serious” to be necessary in the Bill.

I have listened to the excellent arguments put forward in this debate, and it is clearly extremely difficult to define “serious”. The noble and learned Lord called it an ordinary word but, as has been pointed out, it raises a huge number of problems. I am attracted to the suggestion of my noble friend Lady Hollis that we should give further consideration to strengthening guidance in relation to this word and that perhaps we should define it more fully in the guidance. I think that we need further discussion about this. It would be difficult to include a definition in the Bill but I am certainly willing to discuss it further before Third Reading.

I noted the appropriate point made by the noble Lord, Lord Elton—that if noble Lords do not vote on this matter today, they may not have another opportunity to discuss it. I would ask that perhaps we could have further discussions with the noble Earl, Lord Howe, the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Mackay, and others, to see how we can proceed. As I say, it may not be possible to include this in the Bill. If not, I am certain that we could indeed strengthen the guidance. Perhaps there will be room for further discussion before Third Reading.

My Lords, I am grateful to Members of the House who have taken part in this debate and to the Minister for her reply. I confess that I had hoped for a rather stronger assurance from her that the Government were in principle willing to go down this avenue. I did not quite hear that, although I am grateful to the Minister for her offer.

My noble friend Lord Tebbit is absolutely right that no amendment is likely to be perfect. My hope was that this amendment would take us forward in a useful and workable way. The noble Baroness, Lady Finlay, is also correct in pointing to the shades of grey that are inherent in the word “serious”. I believe that it is too flexible a term. We want a certain amount of flexibility, but the shades of grey in the amendment are not as wide as they would be if we left the Bill as currently drafted.

The noble Lord, Lord Winston, pointed out the differences between different manifestations of a particular disease, such as muscular dystrophy and cystic fibrosis, because of different types of gene mutation. That is precisely why I thought it right to leave an element of flexibility in the definition, dependent—perhaps inevitably—on a certain amount of subjective judgment. I note the reservations of the noble and learned Baroness, Lady Butler-Sloss. As I suggested earlier, the intent behind the amendment was that the interpretation of the wording should be fleshed out by means of HFEA guidance. I suggest that that would reduce the scope for legal uncertainty.

The noble Baroness, Lady Masham, made a very telling point. We are talking here not about terminating life, but about deciding on the criteria for embryo testing, which is rather different. If the Minister had been able to give an assurance about placing this definition in guidance, as the noble Baroness, Lady Hollis, suggested, I would have wished to withdraw the amendment.

My Lords, forgive me for interrupting the noble Earl, but I did give an assurance that we would be able to do something in guidance. I could not give an assurance that we could include something in the Bill, but I give my wholehearted assurance that we will put something in guidance to that effect.

My Lords, before the Minister sits down, can she clarify the extent of the Government’s powers to put something in guidance? I recollect that it would be within the discretion of the HFEA, and I am not sure that there could be a guarantee that something would be in guidance. I may be wrong and it may be that when draft guidance goes to the department something can be inserted, but I am not sure that I recollect that.

My Lords, I understand that we have given an undertaking in relation to counselling and information, and that there will be duties on the HFEA in terms of guidance. I think that it will be the same here, and we will ensure that there is a duty on the HFEA to adhere to this guidance. If I am incorrect, I will notify noble Lords as soon as possible.

My Lords, is it the Minister’s intention that the “something” should be nearer to what has been proposed by the noble Earl, Lord Howe, or it will be very different and even more vague than the term “serious”?

My Lords, we would work the basis of the wording of the amendment tabled by the noble Earl. However, we would have to take into consideration the views expressed by noble and learned Lords.

My Lords, does the noble Baroness agree that if something is in guidance it is just that—guidance—and not an instruction? Therefore, the recipient body would look at the guidance but would not necessarily feel obliged to stand by it.

My Lords, guidance is guidance, yet the code to which the HFEA must adhere needs Secretary of State approval. As I understand it, that would be statutory guidance.

My Lords, I am again grateful to the Minister. The argument for having something in the Bill which more closely defines the word “serious” is that it would send a clear signal about what Parliament intended.

My Lords, I am most grateful to my noble friend. It occurs to me that—

My Lords, really. If the noble Lord will forgive me, I would like to remind the House that this is Report stage and not the first day of Committee. People should have stopped intervening by this stage. I know it is important, but if people wish to change the rules of the House they can do so in the usual way. This is getting totally out of hand.

My Lords, I have no wish to change the rules of the House. It is perfectly within the rules for me to intervene in my noble friend’s speech to ask him a question, as opposed to what has been going on, about which I had some doubts, with people asking views of the Minister during my noble friend’s speech.

Would my noble friend consider that, were this amendment to be enacted, it would still remain possible for the Government to give guidance? The only difference is that it would be guidance on the basis of what we had put into the Bill, and not what we might have put into it.

My Lords, I find that intervention by my noble friend extremely helpful. It encapsulates what I was intending to say in a rather better way than I would have said it. Given the support I have received, there is a case for testing the opinion of the House. I hope the Minister will understand if I now do that.

moved Amendment No. 35:

moved Amendments Nos. 37 to 40:

moved Amendment No. 43:

moved Amendment No. 49:

moved Amendments Nos. 50 to 74:

moved Amendment No. 75:

My Lords, I support this amendment extremely strongly. It is important for the House to understand how difficult it is to generate an embryonic stem cell line. In my own laboratory, in one of the leading science universities in Europe at Imperial College, I have had a team of three post-doctoral scientists—so not PhD students—working for several years with a virtually unlimited budget to produce stem cell lines both from mice and from human embryonic tissue. It is extraordinarily difficult and it is only now that we have started to get lines which look vaguely like normal stem cell lines. In fact, after two and a half years of research, we were so desperate to get stem cell lines that we ended up buying in lines from Harvard University in the United States. When we examined those stem cell lines, we found that they too were defective and not valuable for human research. This is a priceless biological commodity and it is frustrating for us as scientists to see a slight inconsistency in the Government’s position. It is interesting to consider that, at the moment, growing consideration is being given to the idea of people having their organs donated without consent after an accident for renal transplantation, yet here we have lines which have been established with consent but not specific consent, so they cannot be used for this research. That seems a very difficult position for the Government to adopt, and therefore I must support this amendment.

My Lords, for the same reasons as the noble Lord, Lord Winston, I would like to say something about this amendment but I come to a different conclusion, which will not be a great surprise to the House. The noble Lord is right to remind us that we should see this in the wider context of the debate about organ donation. Having been involved first as a Liberal Member of Parliament and then as a Member of your Lordships’ House when organs were taken and used without consent by the Alder Hey children’s hospital, I know that your Lordships will realise that there is potential here for considerable controversy and inconsistency in the way the noble Lord has just described. I am slightly surprised that this amendment was not brought forward at a much earlier stage. If it is so crucial, why was this issue not considered by the scrutiny committee in detail? Before we incorporate this proposal into the legislation, should we not at least pause and give it further deep consideration?

The issue of consent is the crucial one, not the issue of the creation of the human embryo in the first place. Are we willing to allow retrospectively this use of the tissue and cell lines of people who might have a deeply principled objection to the creation of human embryos? That is the problem. We cannot on their behalf take this decision. Certainly, if I were asked whether my organs or cells could be used for a particular medical treatment, I would continue to carry my donor card. It is an altruistic and generous thing for members of the public to do. We should follow the Spanish model of having teams in every hospital in the country. These teams have significantly increased the levels of donation in Spain in comparison with our own country. We should also look at the alternative of using the far less ethically troubled adult cells which can be reprogrammed to create embryonic cells. If we were to do that, there would be no reason for any disagreement between the noble Lords, Lord Winston and Lord Patel, and people like myself.

Mine might be a minority view but it is perfectly properly held. I think there will be deep concern and anxiety outside your Lordships’ House if we agree this principle, which, as I say, is one of retrospection. It could be seen as a violation of the rights of someone’s body. We are sometimes properly swayed by the humanitarian concerns raised in your Lordships’ House, but outside there are also commercial considerations. We have to weigh all these things in the balance. The Human Fertilisation and Embryology Authority, which we are invited to place so much faith in, is a regulatory body, not an ethical one. That is one of the reasons why we have been debating how complex questions of this kind can best be resolved in the future. The HFEA is not the place to do that.

I was struck by an interview in New Scientist on 15 December with Professor Shinya Yamanaka, who, as your Lordships will be aware, is the scientist who has been involved in the reprogramming of adult cells in order to create embryonic stem cells. I accept that the noble Lord, Lord Patel, specifically said that this would not be for use in fertility treatments. Nevertheless, when Professor Yamanaka was asked whether he had any concerns, he said:

“In theory, our work means that you can generate germ cells from iPS cells”—

that is, induced pluripotent stem cells—

“which could be very good news for the treatment of infertility. So it is good in that sense. But I can make eggs as well as sperm from my own male iPS cells. What if someone took those sperm and eggs from a single person and fertilised them? The result would not be a clone because of the way cells divide during sexual reproduction—the fertilised egg would not be genetically identical to the original iPS cells—but it would be something very strange and dangerous. At this time there are no guidelines or rules that would prevent this. This kind of fertility technology is still very difficult so we don’t have to worry about it too much at the moment. But now that everybody can generate these cells, it could become dangerous”.

I do not have a knee-jerk reaction every time someone comes forward with something that may be of use and advantage to mankind, but I believe, as Professor Yamanaka has said, that we have to ponder these things. We should not retrospectively give consent for something that is not of great urgency; it would not prevent the development of life-saving cures. There are alternatives that we should be using. I hope the Government, before accepting the amendment, will give it a lot more thought.

My Lords, does the noble Lord accept that all the embryos that have been involved in research have been researched with informed consent, although not specific consent in the way that is required in the Bill?

Yes, my Lords, I accept that. That is why I would like this to be given further consideration. Where specific consent has been given I can see that, even if someone disagrees with the views I have expressed in your Lordships’ House, given that this is where the law stands today, that would be legal. As the noble Lord has just said, however, consent was not given with a view to this specific line of inquiry, and people should have had the right to know that before they were asked to give consent; if not, this issue would be in danger of discrediting the whole idea of consent. Before we proceed in the wider debate about organ donation, we should weight these matters carefully and try to turn this into not an area of controversy but one around which we can find some agreement.

My Lords, it is difficult to overstate the crucial importance of this amendment for the future of medical research. I am a firm believer in the principle of valid informed consent in the field of medical research, wherever it is possible for such consent to be obtained. I can do no better than to quote a letter in this morning’s Times from the 28 scientists to whom my noble friend Lord Patel referred:

“we, as stem cell scientists and supporters of biomedical research, are very concerned about the proposed ban on the generation of embryos in such research by the use of cells for which the donors did not, or could not, give specific consent. We fully agree that in the future such consent should be a requirement and that it would be wrong to use previously donated cells if there were good reason to believe that the donor would have specifically objected to their use in embryonic stem cell research. However, many existing cell and tissue samples and cell lines were donated, for any research purpose, by patients (now untraceable) with particular diseases, before this sort of research was even imagined. These cells have been well characterised over many years, or have unique properties and may therefore be the best samples to use for the derivation of embryonic stem cells. Such stem cell lines would be of great value in understanding how diseases develop, as well in the search for therapies”.

The letter goes on to say:

“We are alarmed that the Government has expressed opposition to this amendment, even though it mirrors a similar provision in the Human Tissue Act 2004, regarding anonymous, untraceable ‘existing holdings’”.

It finally says:

“We urge the Government to accept this important improvement to the Bill, which will help to maintain the UK’s reputation as the place of choice for this exciting and world-leading medical research”.

I could not have expressed it better. These stem cell lines already in existence, derived from cells which were donated for research purposes, are an invaluable source which must not be allowed to degenerate.

My Lords, I should like some clarification. Proposed subsection (2) states:

“Condition A is that the human cells are lawfully taken from or provided by the donor”.

When the noble Lord quoted from the letter in today’s Times, he said that many of the cells were given for an unspecified purpose, just for research. What about the ones which were not? Are there records of those who said, “You can take any cell and do anything you like with it” and those who imposed conditions, like people do with organ donation, allowing, for example, the use of their eyes but not their lungs? Is there a significant difference between those who made the point that those cells could be used for anything and those who did not?

My Lords, just for clarification, the noble Baroness is right. The seven conditions include no specific consent given. So if anybody says that their cells or tissue should not be used, they will not be used.

My Lords, the noble Lord, Lord Walton of Detchant, in reading out the letter that many of us have read in this morning’s Times, has really made the most important point. We are dealing with a cell bank which has been built up over many years. I suspect that, in the vast majority of cases, the original donors gave consent for research into the disease and that they are currently untraceable. Many of them have been anonymised and in other cases the individuals may not be able to be traced at all.

We are not talking about cells being taken from new donors. I suspect that the noble Lord, Lord Alton, was addressing at least some of his remarks to that. For that, consent will always be required. The amendment refers to cells stored before the date on which this Act comes into force.

There has also been mention of the Human Tissue Act or, as I frequently call it, the Human Tissue Bill. Those of us who spent many rather difficult days in the Moses Room debating the Committee stage of that Bill will never forget it. I am very sorry that the Minister’s predecessor, the noble Lord, Lord Warner, is not in his place, because he had to defend the Government’s position on the Bill when it reached this House. It was stated then—I suspect by many of the same people who have written the letter to The Times—that that Bill would have made most medical research impossible because of the amount of consent that would have been required before any tissues could be used. I always regard the noble Baroness, Lady Finlay of Llandaff, as one of the heroines of that particular battle. By the end of that Committee stage, we had succeeded in putting into the Bill the measures that made the Human Tissue Act workable. It is not perfect, as we learnt in the Joint Committee, but at least it was workable, and much of the research could go on.

I have a horrid feeling that the Government are making the same mistake that was made four years ago when that Bill came through. This started by thinking that we must have consent for everything and therefore that there must have been consent for whatever is going to be done—even to tissues that were taken before. We were able to establish that that was impossible and therefore unreasonable. After debate, the Government, very wisely, accepted that.

I hesitate to intervene because several points have been raised this afternoon about procedure at Report and I do not want to transgress any rules of the House. However, I wonder if my noble friends on the Front Bench—particularly considering the points just made by the noble Lord, about the arguments from the example of the Human Tissue Act—could find some way of looking at this again before Third Reading.

As I say, I understand the problems involved with introducing new matters at Third Reading in this House. However, there is a great deal of concern in the House, about the nature and substance of issues raised in the very powerful introduction of this amendment by the noble Lord, Lord Patel—and indeed supported by the noble Lord, Lord Walton of Detchant—combined with concerns raised on the regulatory side, if I may put it that way, by the noble Lord, Lord Jenkin of Roding. Is there any opportunity for my noble friends to find some way forward on this?

I have enormous sympathy with the proposition of the noble Lord, Lord Patel. I had the privilege of serving with him and others on the pre-legislative scrutiny committee. Part of that privilege meant that we had time to try to be wise. If I may say so, I find that I need more time to consider the relationship between the ethical issue of consent and the undoubtedly huge significance, both scientifically and medically, of all that the noble Lords, Lord Patel and Lord Winston, said. I therefore support the noble Baroness, Lady Jay, in asking whether it is possible—and let me please repeat that I have enormous sympathy about this—for the House to find some way of bringing wisdom to this. Can we quietly and with a degree of ethical finesse come to a mind and say, “Yes, we can wholeheartedly support this” as opposed to feeling, “Gosh, I wish we had had more time to think about it—and until the letter appeared in the Times, it had not really crossed my radar”? Without in any way wanting to stop what the noble Lord, Lord Patel, is proposing, I support the noble Baroness, Lady Jay, in saying, “Can we somehow have a means of thinking this through in greater detail and with more wisdom in the future?”.

My Lords, if procedures allow it, I would like to ask the noble Lord, Lord Patel, to clarify what happens in the real world in relation to these cells. Proposed new subsection (2) states:

“Condition A is that the human cells are lawfully taken from or provided by the donor”.

That is probably the wrong use of the verb. Are we not talking about an existing bank? We are looking back at a time that the cells were provided and taken. Am I right so far?

Subsection (7) states that,

“it does not appear to the researcher that the donor has indicated any objection to such use or storage”.

What would the situation typically be—that we have a bank but we do not know the identity of the donor now? Do we know whether he indicated anything in relation to the cells—whether they were to be used for research or research on a particular character? Had he been asked to provide cells for a particular research project? What do we know and what meaning can be given to subsection (7) in the real world?

My Lords, am I allowed to answer that? The noble Lord is quite right. Subsection (2) states that they were “lawfully taken” with appropriate consent. Subsection (7) states that:

“Condition F is that it does not appear to the researcher that the donor has indicated any objection to such use or storage”,

of those cells or tissues for the purpose wanted by the researcher. I gave a similar answer to the noble Baroness, Lady O'Cathain. If any conditions were attached, the authority would not allow the researcher to use the tissues, cells or cell lines.

My Lords, I rise to intervene very briefly and only because of my position as scientific adviser to the Association of Medical Research Charities, which wrote the letter to which my friend the noble Lord, Lord Patel, referred. I support his amendment very much indeed. I have one further point: if the suggestion of the noble Baroness, Lady Jay, is accepted, we should think very carefully about what the Human Tissue Act 2004 had to say about the position of consent for the use of tissues that were anonymised or from donors who were no longer traceable. We set up the Patient Information Advisory Group, whose sole purpose was to examine cases where consent had not been given. Could that be incorporated into the thinking if we return to this matter at Third Reading? If it cannot, or if that is not suggested by the Minister, I strongly support the amendment moved by the noble Lord, Lord Patel.

My Lords, I join my noble friend Lady Jay in urging my noble friends on the Front Bench that if they feel that they cannot accept this amendment outright today for reasons related to its technical drafting, for example, they should take the amendment in the spirit in which it is intended and return to it at Third Reading. All of us on the pre-legislative scrutiny committee—I support every word that the noble Lord, Lord Jenkin, said, and although we have not heard on this issue from the noble and learned Lord, Lord Mackay, he steered us through many a quagmire on that committee—sought to take forward the legislative and ethical content of the previous legislation to reflect the changing scientific world we now face. That changing scientific world and the development of research and so forth depend very heavily on the accrued knowledge locked into the tissue bank on which further research can occur.

Our efforts in that pre-legislative scrutiny process were to produce sufficient headspace in this Bill for those of us who could not see round the corner, while none the less maintaining an ethical platform throughout. To require retrospective consent from donors who may well be anonymous or untraceable is not consistent with either the general thrust of this legislation or the work of the pre-legislative scrutiny committee. I hope very much that my noble friends, having heard the debate today, will reflect and see whether they can help the House by either accepting this amendment today or returning to it at Third Reading.

My Lords, I have one brief point also about subsection (7). It provides that,

“it does not appear to the researcher that the donor has indicated any objection”.

If there is a challenge by someone to the researcher’s subjective opinion about that, is there any way in which that could be examined by an independent body or authority? I am rather anxious about a researcher, hotfoot and full of enthusiasm for his research, looking at this without anybody having the power to look into it and saying that they had had another look and the research was right, or that the research was quite wrong and there was some evidence of objection.

My Lords, I do not know if I should answer this in winding up, but I will answer now. As I said when I introduced the amendment, both the HFEA and the research ethics committee will have to be satisfied that the researcher applying for a licence has secured the appropriate consent. It is not the researcher who decides, but the research ethics committee.

My Lords, if that is right, could not the ethics committee, or some other similar body, be brought in to intercede as a further protection? That would satisfy completely.

My Lords, the letter in the Times suggests that the vast majority of the subject matter of this amendment—or, at least, a substantial amount of it—will have been the subject of general consent. If it had been the subject of general consent, it is difficult to see that that consent should be restricted or reduced retrospectively. That would be the result of not giving effect to it.

On the other hand, the letter suggests that that may not be true of all. It is not quite clear that this amendment differentiates in that way between material that is the subject of general consent and other material. I have difficulty knowing how the other material reached the bank. On what basis is it in the bank? As I understand this problem, the general consent provision should operate. If there is no general consent, but there have been some conditions under which the material has reached a bank, that must determine whether it is right to use the material in the way proposed. Therefore, there may be slight differences between the different types that are subject to this amendment. Generally speaking, the idea of using the material for a purpose covered by the general consent already given ought to be perfectly in order. I would think it wrong to try to obstruct that.

My Lords, Amendments Nos. 75 and 107 seek to permit the use of cell lines, a tool commonly used in research, for the creation of embryos in the laboratory by means of therapeutic cloning, without specific consent to this activity being obtained from the cell donor. The amendment would apply in cases where the cell lines are already in existence, and the original donor cannot be contacted to obtain such consent.

Cell lines are immortalised cells kept in the laboratory for use in biological science experimentation. Once taken from the donor, they can be cultured indefinitely and without limit. Scientists gain permission to use these cells by obtaining a general consent from the donor for their use in scientific experimentation. Due to the nature of cell lines, these cells may be cultured for many years. Some in existence today originate from donations made decades ago. Schedule 3 to the Bill preserves the system of consent found in the 1990 Act for the creation, storage and use of embryos and gametes to create embryos, but makes changes to reflect the fact that human embryos can now be created in more ways than simply by mixing human gametes. Additional consent requirements are introduced to ensure that informed consent is obtained before any human material can be used to create an embryo, and for the subsequent use and storage of such embryos. Equivalent consent provisions are also introduced in relation to the creation, keeping and use of human admixed embryos.

In essence, the Bill sets out a framework which ensures that, if a person’s gametes or cells are used to create an embryo, effective consent is in place beforehand. In the case of cell lines, even though the original cells may have been taken from the donor with their consent to research in general, the use of their genetic material to create cloned embryos or human admixed embryos is exceptional, and requires its own express consent. To provide otherwise would be incompatible with the convention rights. We have done a lot of work on this issue. It would also be incompatible with the Human Rights Act.

Before concluding, I shall answer a couple of important questions. The noble Lord, Lord Jenkin, rightly pointed out the Government’s situation in relation to the Human Tissue Bill. The Government take the view that the use of tissue for purposes under the Human Tissue Act is distinct from the use of a person’s genetic material to create a human embryo or a human admixed embryo. The Bill’s provisions reflect the special status of the human embryo and are compatible with the European Convention on Human Rights. For that reason, the issue is different also to the considerations being undertaken by the Organ Donation Taskforce on presumed consent for organs.

My Lords, researchers have embarked on programmes of research on the basis that they have this tissue available to them for their use. As I understand it, if the Bill is passed as it stands, all that research would suddenly have to stop at that moment. Is that correct and, if so, can the noble Baroness give me any idea of how much money will have been wasted on the research that has been done so far, but cannot be continued, because the researchers cannot go on using this material?

My Lords, as I understand it, we are talking about the use of tissue whose donors have said it can be used for research; but what they have not explicitly said is that the tissue can be used for the creation of embryos. That is the crux of the problem.

My Lords, so this is research that involves the creation of embryos.

My Lords, I should point out that this is Report stage. Therefore, procedurally it is now for the noble Lord, Lord Patel, to respond.

My Lords, I think that I am procedurally in order to ask the noble Baroness before she sits down to indicate to us the provisions of the Human Rights Act that have a bearing on this matter. She does not have to reply in detail but I hope that she will say enough to enable us to have some consideration of it before we reach Third Reading. What she said is news to me, but she may well be right.

My Lords, the specific concern would relate to Article 8 of the Convention, which protects a person’s right to a private and family life.

My Lords, a legal spanner has been thrown into my scientific argument. I do not know whether I can answer that. I do not understand what human rights legislation forbids the use of tissue samples, cells and cell lines that have been collected for many years from patients who probably died of the diseases in question and who would have wished while dying that if they donated their tissues for research it could some day benefit others with similar diseases, if a cure or treatment could be found. If that is against human rights, then I do not understand the human rights laws. I probably do not understand human rights anyway.

However, I hope that the noble Baroness is making an offer to me in which she sees a way forward and is giving me a firm commitment to finding a way for such research to be permissible. I go back to what my noble friend Lord Walton of Detchant referred to—the letter of 28 of the most eminent scientists, who put their credibility on the line. Three are Nobel Laureates from the United Kingdom, and there are others. Would they have done that if they did not think that the bank of tissues, cells and cell lines was important, because they could not be created overnight, no matter what legislators in Europe might think? It might be okay for their legislation, but is it right for United Kingdom legislation? Let us put the matter in the context of what we allow. We allow embryo research. We allow through legislation the creating of cloned embryos for research. The Bill also allows admixed human embryos. Put in the context of that, as the noble and learned Lord, Lord Mackay of Clashfern, mentioned, a general consent is given when people donated these tissues and cells.

Before I decide whether or not to divide the House, can the noble Baroness confirm that she is giving me a commitment to bring this back with a view to helping to amend the amendment legally, rather than bringing it back and hearing more arguments against it?

My Lords, I will give a commitment to take this back to see if there is a way forward that is compatible with the Human Rights Act. Should that not be possible, I will, of course, report to noble Lords at Third Reading.

My Lords, can I press my noble friend and ask that before the next stage we have a statement asserting not only that this matter is incompatible with the Human Rights Act but that spells out why in detail and refers to previous appropriate litigation in Strasbourg on this very issue? Otherwise, a general blanket provision such as this could stop all sorts of things if she relied on the brief words in the article of the Convention.

My Lords, I will certainly do my utmost to comply with that.

My Lords, I think that that should make life difficult enough for the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, before we move on to the next amendment, perhaps I may ask my noble friend Lady Royall a question. I know that her burdens as a Minister are large this afternoon, but, in her capacity as a Whip, it would be helpful to the House to have some reprise of the rules of procedure of this House during Report, because the next group of amendments, or perhaps the one afterwards, is extremely complex. Perhaps we could have some guidance on that. I hesitate to put myself in the role of a grumpy old woman, but I listened carefully to what the noble Lord, Lord Tordoff, said earlier.

I shall repeat the words of the Companion to ensure that I do not make any mistakes and I am seeking the assistance of the Table. The Companion states:

“On report no member may speak more than once to an amendment, except the mover of the amendment in reply or a member who has obtained leave of the House, which may only be granted to: … a Member to explain himself in some material point of his speech, no new matter being introduced; … the Lord in charge of the bill; and … a minister of the Crown … Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate”.

moved Amendment No. 76:

My Lords, the noble Lord, Lord Winston, referred some time ago to the work that I did in the course of my professional career on muscular dystrophy. It is almost 60 years ago that I began to work on that topic in Newcastle-upon-Tyne. The most severe form of muscular dystrophy manifests itself only in young boys. It is due to an X-linked recessive gene, transmitted by female carriers which is manifest in half their sons. Indeed, half their daughters are themselves carriers of the gene. The late Professor Nattrass and I entitled the disease Duchenne muscular dystrophy because of the outstanding descriptions given in the 19th century of the disease by Duchenne of Boulogne. It causes difficulty in walking; boys begin to waddle as they walk, and by the time they are nine or 10 years of age, they are confined to a wheelchair because of widespread paralysis. In the old days, because of gross deformity, few of them survived beyond the age of 15 or 16. Now, as a result of much improved care, including ventilatory care, many of these boys live until their twenties and even later.

Research has been vital in learning more about this disease and it is bringing with insight the prospect of potential treatment. In 1987, the gene responsible for this disease was discovered. As the noble Lord, Lord Winston, said, it was found to be a very large gene, with several different kinds of mutations within it. Broadly, the result of this abnormal gene is that it traduces in the muscle cells an absence of a protein called dystrophin, which is an important part of the membrane of the muscle fibre—it is rather like the skin of a sausage. Because of this, that membrane becomes inefficient and, as work in my department in Newcastle showed many years ago, it allows certain chemical substances to get in from the extra-cellular fluid which begin a process of digestion or breakdown of the muscle.

This disease can now be diagnosed—and has been able to be diagnosed for many years—at birth, by means of a simple blood test. It is clear to all researchers that if you are going to produce a form of treatment that will be effective in controlling this disease, it has to be done very early in life—preferably in the young infant.

My Lords, requirements for consent to the creation, keeping and use of embryos, and consent for treatment or research, is one of the cornerstones of the 1990 Act, and is carried forward by the Bill. The provisions relating to when consent will be required and the content and form of such consent are set out in Schedule 3 to the 1990 Act.

The Bill sets out to ensure that human and human-admixed embryos may only be created for research purposes, and only where the person to whom the cells belong gives their explicit consent. These requirements have been introduced to reflect the special status of the embryo. No one can give consent on behalf of an adult who lacks capacity, and, for the same reasons, I do not believe that a child’s cells should be used to create embryos or human-admixed embryos without that child’s own consent.

If a child is incapable of giving consent to the creation of a human or human-admixed embryo themselves, because they are too young to do so, it would be wrong for any person, including the parents, to make that decision for them, given the significance of creating an embryo using their genetic material.

I have heard the powerful statements from the noble Lords, Lord Patel and Lord Walton of Detchant, but the Government take the view that we should not, in any circumstances, presume that a person’s cells can be used in the creation of embryos without their consent or knowledge. I therefore invite the noble Lord to withdraw his amendment.

My Lords, I am seriously disappointed with that argument. We are talking about children who suffer from diseases that kill them within two or three years and who rarely reach the age of consent. If they do, by then they are so sick that they are not able to give consent. Yet we say that their parents cannot give consent, even if they wish to do so, because studying the progression of the disease and, it is hoped, finding a treatment is done through creating stem cell lines using the techniques of somatic cell nuclear transfer. We allow that in relation to adult diseases in the hope that a cure will be found for those diseases but we cannot allow it in respect of children, even if their parents wish it. I do not follow the logic of that argument and, if I do not follow it, perhaps others will not either. If they do not, I hope that they will follow me.

My Lords, I shall not go through the process of government, but I have listened carefully to the points made in the debate. I agreed to take away the previous amendment moved by the noble Lord, Lord Patel, which in many ways dealt with the same issue—that of consent—so perhaps it is beholden on me to take away this amendment for further consideration and come back at Third Reading.

My Lords, I thank the Minister. I hope that the Government will return to this amendment—even more so than the previous one. The previous amendment concerned consent that might be generic, whereas in this one we say that consent can be from the parents of children who are dying of a particular disease. Therefore, I do not follow the Government’s argument. I hope that if I withdraw the amendment, as the Minister asks, the Government will take it up. In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendments Nos. 77 to 105:

My Lords, before I call Amendment No. 108, I must inform your Lordships that if it is carried, I shall not be able to call Amendments Nos. 109 to 110A for reasons of pre-emption.

Clause 14 [Condition of licences for treatment]:

moved Amendment No. 108:

moved, as an amendment to Amendment No. 108, Amendment No. 108A:

My Lords, I advise your Lordships that, if the amendment is agreed to, I cannot call Amendment No. 108C due to pre-emption.

My Lords, as we are at Report, I will not repeat some of the things that I have said previously in this House. I am one of those who have always found it difficult when people are so morally rigorous that you can end up with an injustice. More rigour does not help. Nor have I always been persuaded, as I am seeing happen more and more often in this great country, when competing rights are set up and then some rights can trump other rights. I am one of those who are totally committed to equality, fairness and justice, but I cannot be persuaded that phrases such as “supporting parenting” equals a mother and father. It is such a vague phrase. We need to define it to know what we mean.

I come from a family where I am one of 13 children. I was raised largely by my grandmother, but I wanted to know who my parents were. I knew who my mum was, I knew who my dad was, but I was raised by what I call “supporting parenting”. It worked. I come from a very large extended family, including uncles and aunties, but we knew who our dad was. As for the phrase “supporting parenting”, supposing that a child wants to know, “Who is my dad?”, and is told, “Don’t ask such questions. It is discriminatory. We are your supporting parents”. A child will not be satisfied. A child wants to know. I have friends who are in same-sex relationships who, through treatment, have children. The children know who their dad is, who is responsible for the sperm. I think that it is important to extend that element of family help and support.

The 1990 Act considered the need for a child’s concerns to be taken care of and the need for a father. That phrase has not prevented my friends from having treatment and having children when they are in a same-sex couple. There is this fear that it looks discriminatory. Removing from the statute the words “father and mother” is trying to discriminate against another group of people. Again, here are competing rights. The current provision is that that is where it is still possible; the arguments were made at the time.

The think-tank report from the Fatherhood Institute, The Difference a Dad Makes, makes salutary reading about how, in this great nation, fathers are sometimes not in the forefront of the raising of their own children. It is almost being suggested now that it does not matter much whether fatherhood is an important thing or a good thing. The person whom I know who donated the sperm to my friends for them to have a child could not be in a relationship with that person. None the less, on the birth register, his name is there and he has every intention, although from a long distance, still to take responsibility as a father. That has not prevented the family arrangements as they are at the moment.

May we not be in that moral liberalism, that is so strong, that we may be unjust, that we set up competing rights where some trump other rights? This country has been very great at finding a middle way. So I support, instead of the phrase “supporting parenting”, the phrase “support by a father and mother”. That does not prevent other arrangements, other families, being involved.

I fostered children because their mother died of cancer. We reached the stage where we wanted to adopt them. It became quite clear that, if we went down that road, they should still have their father’s name, instead of taking on our name. We could not do that legally because of a number of complications, so we continued to foster them. They call us “auntie” and “uncle”. Their parents are now both dead. We have raised them up and they are thriving. Friends, we were “supportive parents” in that respect, but that did not prevent them knowing who their dad and their mum were. Ask yourself: what is it that we are trying to ask and trying to do?

I say to your Lordships that, for me, Amendment No. 108A is a much better phraseology. As we are seeing this afternoon, very loose phrases, such as supportive parenting, are being used without any clear definition. Lawyers out there want to know: what is supportive parenting? What does it look like? How do we know? Do we compare this house with that house or that place? I go for the words, “supported by a father and a mother”, which does not leave out other arrangements in our society.

My Lords, I support the noble Baroness, Lady Deech, in Amendment No. 108A, which I have co-signed, requiring IVF providers to consider the need for a father as well as a mother. The Government are seeking to remove the need for a father from existing legislation, but their case contains a fundamental contradiction which they have so far sought to avoid. I know that the Government and those who have taken part in previous debates are all agreed that the best interests of the child are paramount in the Bill, but it can never be in the child's best interests for someone to decide that he or she does not need a father. If our primary concern is the best interests of the child, noble Lords must support Amendment No. 108A.

At various points during consideration of the Bill, we have heard in this House and read in the media of individuals who have been raised without a father, and yet who have grown up happy and well adjusted. While of course we rejoice at the outcome for these individuals, we must be wary of such anecdotal evidence. As I have said before, stories with happy endings are not the basis on which to make law. Many people could testify to the negative impact on their life of growing up without a father. Both public opinion and the weight of sociological research recognise the vital importance that the father plays in a child’s development. The noble Baroness, Lady Deech, has already quoted the ComRes poll which found that 77 per cent of those interviewed considered the obligation for IVF clinics to consider the need for a father to be “important” or “very important”. In Committee, the noble Baroness, Lady Deech, and I referred to and quoted from extensive bibliographies of evidence. All of that research is on record. Amendment No. 108A has significant support from sound research and from the public.

My Lords, I support the government amendment and oppose the other amendments. I applaud, of course, and share entirely the purpose of those who are moving amendments to the government amendment: we all share the desire to ensure that there is effective and proper parenthood in this country. In this group we are talking about an entirely different question from that addressed principally by—if he will allow me to say so with great respect, for he knows that I am a great admirer of his—the most reverend Primate the Archbishop of York. The question “who is my genetic father?” is one that should always be capable of answer by honest parents to inquiring children. It already happens in adoption, and all those of us who support the government amendment and oppose the other amendments believe that an analogy with adoption is entirely appropriate here. We are taking about a different question.

I share too the determination of the noble Baroness, Lady O’Cathain, to crusade for responsible parenthood. Again with great respect, for I admire her enormously as well, I say to her that in reality any crusade for universal responsible fatherhood was lost a couple of generations ago, as those of us who have practised the criminal law have come to learn day by day.

Yesterday I had the privilege of hearing a sermon in a small Anglican church in London in which the priest warned of the dangers of what he called the abyss of selective morality. I fear that in considering and particularly voting for the amendments to the government amendment, we are on the edge of that very abyss. We have heard a bit about ethics. The noble Baroness, Lady Deech, seemed to me to speak of ethics as though they were some kind of immutable force, but they are not. Science is a mover of ethics, as ethics are a mover of science. This is not a static issue.

Those who are involved in same-sex partnerships are offended, and in my view rightly offended, by the inference behind what the noble Baroness, Lady Deech, is proposing. They say that there is no evidence for the finger of criticism to be pointed at them in the way implied by what is requested. They say that they offer no standard lower than any other form of parenthood. They say, rightly in my view, and as I think the Minister was saying, that if the government amendment is not carried, there is a severe risk of the law passed by this House being offensive to the European Convention on Human Rights. I now turn with some trepidation to a very personal observation—

My Lords, I thank the noble Lord for giving way; I am very grateful. Which particular provision of the European Convention on Human Rights does he have in mind?

My Lords, I have in mind the provisions dealing with family life, as the noble and learned Lord will well understand. The noble Lord, Lord Darzi, made it very clear, as I understood his speech, that the Government’s view is that what would be in the law if the amendment to the amendment were carried would be discriminatory against same-sex couples.

I was about to make a very personal observation, and with some trepidation. I do so with the consent and indeed the encouragement of my middle daughter, who lives in a same-sex couple. I do not know how many of your Lordships have the privilege of being the grandparent—of course this place is full of grandparents, and great grandparents—of a child or children from a same-sex couple. I have one and eight-ninths grandchildren, if you see what I mean, from a same-sex couple. The daughter in question, my middle daughter, is a solicitor, and her partner is an accountant. They are—if they will forgive me—as square as a box. They live in a provincial town in England, in a splendid semi-detached house with double-glazed new windows and a Vauxhall Zafira sitting in the drive. Their child, my grandson, is the picture of health and his parents are morally exemplary. They happen to be married to each other through a civil partnership and they are both female.

I hear the noble Lord, Lord Tebbit, unhelpfully muttering from a sedentary position. I do not expect to persuade him, and I am sure that he will do me the politeness of giving me a quiet and fair hearing. I do not give way to him now, I am afraid—not to such an intervention—because he will have the opportunity to speak if he wishes to do so.

My daughter and her partner became parents by going to a well run, highly respected fertility clinic. Their second child will be a full sibling of their first child, my existing grandson by that marriage. The child is clever and articulate; I suspect that he may be the brightest of my grandchildren, but do not tell the others. My daughter and her civil partner have many friends who have been through the same process, and I have met several of them. They are typical of such couples: respectable, decent, honest and rather squarer than the prejudices held by many about such couples. They abhor the idea of people going on the black market to dishonest fertilisers—sperm donors—who already exist in this country. I know from pretty reliable anecdote that there are people in London who are prepared to be sperm donors informally, in their bathroom or kitchen, in the most disgusting way. They are unregulated, the health risks are enormous, and they can be accessed via the internet. If same-sex couples like my daughter and daughter-in-law are driven on to the black market for sperm donors, we will have a health disaster on our hands. But they may well feel driven to do that if the law is drawn in the way suggested in the debate, certainly in the last speech and in the eloquent opening speech by the noble Baroness, Lady Deech, introducing the amendment to the amendment.

I urge your Lordships to hold back from imposing what are really old prejudices, however conscientiously felt, on the modern world of civil partnerships. To those of us who have walked in and out of prisons, in and out of courtrooms whether as advocates or judges, who have been Members of the other place and have had large numbers of people coming to see us week after week privately about their personal problems, I say this: in the real world, what is offered by conscientious same-sex couples probably exceeds in quality the majority of what is offered even by heterosexual couples. There is no reason to discriminate against them. So I invite noble Lords to remember that we are in 2007—

2008.

I apologise, my Lords—2008, but it would also have done in 2007. An awful lot has happened since 1990, mentioned by the noble Baroness, Lady O’Cathain, a few moments ago. We need to recognise the reality of our modern age.

My Lords—

My Lords, I thank my noble and learned friend for permitting me to go before him. I should like to support this amendment and to speak to the amendments to which I have added my name. I do not consider this to be a question of selective morality. I am not a crusader—that is the last thing I am. I am not opposed to civil partners, and when I was a judge I made orders that handed children to same-sex parents. So I stand very much in the middle. I listened with interest to what the noble Lord, Lord Carlile, said about his daughter, and good luck to her. I would not be opposed in any way to what she and her partner do.

The amendments that I have tabled and the amendment of the noble Baroness, Lady Deech, which I support, have the underlying purpose of trying to find a suitable form of words to express the view that good and supportive parenting is of great importance to a child about to be born, bearing in mind the purpose of the legislation with which we are concerned today, but the government amendment, which is welcome, does not go far enough. I know that I am not alone in this House in that view. The 1990 Act expressly required attention to the importance of the father figure in looking at the welfare of the child. In 2008, most of us recognise that a single-sex couple can provide a good upbringing for children—as the noble Lord, Lord Carlile, has pointed out—and that the specific drawing of attention to the need for a father may be more than is appropriate, although I do doubt it. We must not shut our eyes or shrink from speaking out about the advantages of both a male and female parent, and the possible disadvantages of bringing up a child without the influence of a person of the opposite sex to the parents. To recognise the advantages of a male and a female influence in a child’s life in whatever way that may occur—I look more broadly than the mother and father; I have in mind godparents, uncles and aunts, and grandparents—and to look for a reassurance on that aspect of bringing up a child under the provisions of this Bill would not, in my view, breach any of the articles of the human rights convention.

The Government are unnecessarily concerned about the impact of the Human Rights Act on these amendments, and indeed about the promotion of equality. This is a Government who have criticised the unnecessary application of the Human Rights Act from time to time, and on this occasion they should not be looking to put reasonable amendments into a straitjacket which the human rights convention does not impose. It also most certainly is not seen in other parts of the European community.

The use of the words covering the advantages or disadvantages of having a father and a mother does not discriminate against the single parent or a same-sex couple. I discussed these amendments with a leading member of Stonewall, who is a lawyer. He laughed when I told him that this was considered to be discriminatory and contrary to human rights, and he could see no objection to the use of the words “mother” and “father”. But the inclusion of those words alerts the would-be parents as well as the clinic to such advantages.

There is another reason for objecting to the words “supportive parenting” without anything further. It would be wrong for the House to ignore the implications of a decision to delete the phrase, “the need … for a father” and replacing it with the well meaning phrase, “supportive parenting”. The publication of the Bill with the intention to delete the phrase has already been picked up by fathers’ organisations and was the lead article in the magazine McKenzie, sent to me by post from one of the fathers’ organisations. It has already led to the suggestion that this Government do not think that fathers are important in a child’s life. Is that really the message this Government want to send?

I strongly support Amendment No. 111, to which I have also added my name. So far it has not been found, although some of us are trying have it put into the Children and Young Persons Bill, which is currently before the House. I hope that it will be included. It can only be found in the decisions of the courts, which are not easily available to the majority of people, but it is to be found in the Children Act 1995, and this is an occasion when we might usefully follow the Scottish lead. However, I did hear the Minister suggest that it would be put into statutory guidance; certainly for me, that would be sufficient.

My Lords, I have the misfortune to disagree with the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech. I shall say only a few words about the European Convention on Human Rights and the Human Rights Act.

The Law Lords have a distinguished recent record of reading into legislation, wherever they can, equal rights for gay couples, even in areas where Parliament has not passed, for example, the Civil Partnership Act, of which I was originally a supporter in a Private Member’s Bill. They have done so because of their commitment to equal treatment. The reasons powerfully expressed by my noble friend Lord Carlile about presumptions based on stereotypes of what must be a proper family in the context of children said all that needed to be said.

Without going into all the reasons, I agree with the Government’s legal advice that Article 8 of the European Convention, which protects the right to private life, read with Article 14, which means that that right must be enjoyed without direct or indirect discrimination, would give rise to a powerful case, although I would be more optimistic on the part of the claimant were it before our supreme judicial authority, the House of Lords, than I would before the European Court of Human Rights. This is because it is an international court dealing with a wide range of 47 countries and tends to give a wide margin of discretion to the national authorities. Our judges, being close to the social conditions and ethical values of our country, and showing themselves to be aware of the need to secure equal treatment without discrimination, would be much more likely to grant a declaration of incompatibility if the Bill were to stand as it is without Amendment No. 108. If one replaced it with Amendment No. 108A, there would be a serious risk of litigation leading to that result.

The great advantage of the reference to “supportive parenting” is that it does not prejudge or seek to impose a standardised view of what the family ought properly to be. I also have experience, but of a slightly different kind from that of my noble friend Lord Carlile, of lesbians, in particular, being model and rather traditional parents. That simply illustrates that you cannot generalise. I know many terrible families, with terrible parents who are a father and a mother; and I know some extremely good parents who are same-sex couples. We must guard against the danger—I say this in the presence of the noble Baroness, Lady Thatcher—of a kind of Clause 28 being an indirect result of the legislation.

My Lords, I support the government amendment. In doing so, I wish to address three issues.

The first issue concerns the way in which the debate has been turned into a discussion about the value or non-value of fathers. We should all remember that fathers are intrinsically valuable. I said in a previous debate that I had a marvellous father. Difficult as he was, I would not have given him up for anything else. But to say that we are looking for every family to have a father denies the reality of our society as it stands today.

I was rather concerned by some of the comments made, where I thought the noble Baroness, Lady Deech, linked cloning with same-sex families in terms of not having fathers. It suggests to me that the hundreds of non-conventional families out in our communities—and there are many kinds—are not respected. We demand respect of those families if we are going to support them and give them a good life.

Secondly, I wish to consider the issue from the point of view of the child. The noble Baroness, Lady O’Cathain, mentioned that for too long children had been seen as the end rather than the means. For too long, issues about fertilisation have been about childless couples rather than about the children. We know that children do best when they feel secure, understand about their background and have no sudden traumas. Growing up in any family that gives them that kind of background will be helpful.

There was debate earlier about research. The most scientifically rigorous studies of the development of children in same-sex families show that children raised in lesbian mother families are no more at risk of developing psychological problems than their counterparts from families with fathers present in their home. As I said earlier, a stable and loving home environment is the most important thing that children need. The evidence compiled by CARE and laid in the Library—I am a Christian—has been called to account by some of the country’s most eminent experts in the area of fathering and parenting. They have seriously questioned the credibility of The Fatherhood Bibliography.

These are no mean experts: they include Professor Michael Lamb from the Department of Social and Developmental Psychology at the University of Cambridge, and the director of the Centre for Family Research, Professor Susan Golombok. She advised the Rowntree Foundation on parenting and families, is an adviser to the Department of Health and undertakes research at Cambridge. Together with Fiona McCullen, she has followed 25 lesbian mother families from 2004 and 38 families headed by a single heterosexual mother. The quality of parenting in these families shows very little difference. They concluded that the presence or absence of fathers in a home from the outset does have some influence—this is true in single-parent families as well as other families—but has little consequence in later life.

The reason I quote this research is not for self-indulgence but simply to point out that there is an alternative view to the one presented previously, which was deeply hurtful to at least 10 per cent of the outside population who saw this as a slight on their capacity to parent. I wish I had been able to make a speech as moving as the one of the noble Lord, Lord Carlile, in which he described people whom I know who have brought up children. I was speaking recently to two doctors, both working as paediatricians, who had been together for the past 15 years and have a seven year-old boy. They were deeply offended by the suggestion that their parenting was not as good as that of heterosexual couples.

Let me turn now to parenthood and the question of fathers who walk away. Do not sperm donors walk away? Sometimes we want them to walk away, but we want to know who they are. We will come later in the Bill to the issue of children knowing their genesis. It is an important point because if female couples have sperm donated “on the side”, in the ways described by the noble Lord, Lord Carlile, they will have very little opportunity to know who that person was; they will not know about the quality of the sperm or the health of the person donating it.

I want to concentrate on what the Bill is about, not this wider debate. Of course fatherhood is vital and many of us had fathers whom we loved dearly. I said that to a colleague recently, who said to me, “But I didn’t”. We have to remember that not all men are good, which is another issue. I spend a great deal of my time dealing with the civil courts, as did the noble and learned Baroness, Lady Butler-Sloss, and I know that the McKenzie magazine often depicts situations not quite as they might be. I am very fond of the McKenzie people for working for fathers. We are talking about a very small number of couples—significant but small. They are not going to undermine fatherhood in this country. What they are going to do is give children a good home and a stable and loving family, at least equal to their heterosexual counterparts. I am not saying they are more perfect but neither are they less perfect. They are like the rest of the community. They are, as the noble Lord, Lord Carlile, said, extraordinarily ordinary people who happen to want to raise a child healthily and properly through the system. I hope that noble Lords will support the Government’s amendment and give those women the chance they want.

My Lords, this legislation is based on the promotion of equality and on a concept of non-discrimination. I wish we could rescue the word “discrimination”. Its current use seems to imply the exercise of prejudice against other people based on stereotyping, which of course is appalling. I want to reinstitute “discrimination” as meaning coming to a careful and fine judgment based on the use of reason and through reflection on experience.

It goes without saying that I, in common with other Members of your Lordships’ House, recognise the abilities and commitment of many single parents. I do so from my own personal perspective. When my mother died as a result of very serious medical negligence, my father brought me up alone for a couple of years before he happily remarried, and he was quite outstanding. It also goes without saying that I recognise entirely the abilities and commitment of many single-sex couples, as spoken about so eloquently and with such passion, compassion and truthfulness as the noble Lord, Lord Carlile, brought to our debate. But it does not logically follow that a phrase about including the need of that child for a father is discriminatory. It is a statement in our legislative processes about the general recognition that in an ideal world, most children need good fathers and good mothers.

What does the omission signal? I travel quite often by public transport. Like the rest of your Lordships’, I am bombarded with announcements. A man with a megaphone tells me that I am to keep my belongings with me at all times and that I must not smoke. I wonder what would happen if an announcement came across every station in London which said, “In the interests of equality, people are reminded that children do not necessarily need fathers”. In other words, the omission is obviously going to be significant in what it signals to our society about the need for fathers. We can do that without in any sense being discriminatory and exercising prejudice based on stereotypes. That would be absolutely appalling.

I support the noble Baroness, Lady Deech, in what I thought was a very telling remark. She pointed out that the public support for research and treatment is based on certain moral principles which are implicit but from time to time need to be explicit. Those moral principles include our understanding of what family life generally but not exclusively best includes. That is why I wish to support the amendment standing in the name of the noble Baroness, Lady Deech.

My Lords—

My Lords, I do not think we have heard from the Labour Benches. I am prepared to give way to my noble friend Lord Winston. We are now presented on Report with a veritable banquet of options in terms of amendments to the 1990 Act for safeguarding the welfare of children to be born as a result of IVF. It is worth bearing in mind that none of these amendments changes the idea that the welfare of the child is a significant factor in whether to proceed to IVF treatment. That is still an integral part of this Bill. We are arguing about the extent to which we nuance the term “welfare of children”. We have heard some very powerful speeches. I found the speech by the noble Lord, Lord Carlile, particularly moving.

Before settling down to the exam paper, let me first congratulate the Government on listening to the concern that I and others expressed in Committee about the proposed amendments to the 1990 Act for a father. I am particularly pleased that they have moved away from what I can only describe as the positively Guardian-esque wording for a social network which they were toying with. I congratulate the Minister on his success in moving away from that wording.

I have listened to the arguments and for the reasons I gave at Second Reading I still prefer Amendment No. 109, which leaves matters as they were in the 1990 Act. I shall not detain your Lordships by going through all those reasons again. I have not heard an overwhelmingly telling set of arguments for changing the wording. I have heard some arguments and those who put forward those arguments clearly felt passionate about them. I listened very carefully to what the Minister said about possible challenges under the Human Rights Act. He did not say that the Government’s advice was that there would be challenges; he said, “There may be challenges”. There may be challenges under a lot of legislation. Some of us who have signed quite a lot of certificates on Bills coming to this House recognise that this is not a 100 per cent foolproof certificate. We are giving our opinion, based on the evidence and legal advice presented, that the Bill conforms to the requirements of that Act, but there is no 100 per cent guarantee that there will not be challenges. I would like to see the legal advice which says. “There will be challenges. We are not confident that if you kept to the 1990 Act those challenges would be successful”. However, I am a realist and I recognise—and some of us have been here before—that the Government will want to have their way, particularly after they have moved a good way to respond to some of the concerns expressed.

I am not holding my breath about whether we will get through Amendment No. 109 so I have scanned the other amendments to see which take my fancy. The most effective alternative was that tabled by the noble and learned Baroness, Lady Butler-Sloss, which is Amendment No. 110. I always defer to the noble Lord, Lord Lester, on the European Convention on Human Rights—although it seems but yesterday, it was 10 years ago that I was writing policy papers on this for the Labour Party—but the main thing is that it balances rights and some rights are in conflict with each other. It does not give absolute rights to one person over another, but balances them. I would say—and I am not a lawyer, but I would like to hear the arguments against this—that Amendment No. 110 achieves that kind of balance. It is difficult for me to see, on the evidence so far, that that amendment in particular does not do a rather good job, and indeed does not in some ways improve the wording in the 1990 Act. I thought the noble and learned Baroness, Lady Butler-Sloss, made a powerful speech on that.

There are some options for the Government. I ask my noble friend to pay serious attention to some of these issues, as I am sure he will. I do not want him to think I am churlish in not rushing to accept the Government’s amendment—which, after all, is better than where we were before. At the very least, I ask that wording like that in Amendment No. 110 is reflected in the code of practice. The reason I say that is that the distinguishing feature of that amendment is that it provides a clear and elegant test that clinicians have to pay attention to in deciding on the welfare of the child. It has clarity about what clinicians have to consider in terms of the welfare of the child at the point of determining whether they go ahead with IVF. That is the great attraction of Amendment No. 110. I ask my noble friend at the very least to give us some assurances that that is the kind of clarity we would look for in the code of practice. However, if he really wanted to satisfy me, I would ask him to take away Amendment No. 110 and consider it further for Third Reading.

My Lords, my name is also associated with Amendment No. 110 and I strongly support what the noble Lord, Lord Warner, has just said. We have listened to a number of instances of how there might be incompatibility with the European Convention on Human Rights. Given that in certain other European countries there is no permission for people to get IVF unless they appear as a married couple in the first instance, I admit I find it puzzling that we should be accused of discrimination. I am pleased to be associated with the noble and learned Baroness, Lady Butler-Sloss, on Amendment No. 110. I would have thought that its wording would have met virtually any test of discrimination that one could come up with.

I was moved, as many other noble Lords have been, by the speech of my noble friend Lord Carlile. For the purposes of making my own position quite clear, I should say that I always supported the Civil Partnerships Act. I was strongly in its favour and members of my own family have very much benefited from it. Civil partnerships are not the issue at all; the central issue is whether the welfare of the child comes before that of either parent or both parents, whether they are in a heterosexual or a gay relationship. I remain unsatisfied on that point.

My noble friend Lord Carlile said—and this was the one thing in his brave speech that I was slightly surprised by—that he believed the structure of what one might call traditional heterosexual marriage has more or less disappeared. There is one reason why I would raise a substantial question about that: the clear evidence, most recently emerging from the OECD study and others, of the growing involvement of young men in parenthood. Many of us remember, if we go back a generation or two, that fathers were a very distant member of the family, sometimes not much more than authority, sometimes even an authority that abused itself by its behaviour towards its spouse and its children. That has changed quite radically in my lifetime. I now constantly come across fathers who are sharing in all the basic issues of bringing up a child, from changing nappies to pushing prams to taking a huge share in their child’s upbringing. It has been a striking transformation. Many young men today share far more than their fathers or grandfathers ever did, not only in housework but in raising children and in all domestic responsibilities.

For me, that is the way forward. That is what I always thought equality between men and women was all about: the equality of sharing responsibilities as much as equality before the law. I would therefore be very sad if we began to diminish the importance of fatherhood. Here I agree with the noble Baroness, Lady O’Cathain; that is the message that would go out if we effectively said that a child does not need both a mother and a father, as Amendment No. 110 suggests. Why do I say that? Whether we like it or not, our society is made up of two genders: male and female. It is important that children should be brought up knowing something about the approaches and attitudes of those two genders. They are not the same, and thank God they are not. Women bring to society a set of different attitudes and often different objectives from those of men, and children need to try to understand them both.

My Lords—

My Lords—

Sorry, my Lords; I have given way once already. I speak from a rather unique position. In moving the amendment, the noble Baroness, Lady Deech, spoke with the experience of being chairman of the Human Fertilisation and Embryology Authority. The noble and learned Baroness, Lady Butler-Sloss, spoke from her experience on the Bench. I first specialised in infertility care some 35 years ago. My chair, when it was eventually established, was the first in Britain devoted to infertility, and for 35 years of my time professionally, until I retired from the National Health Service, I sat daily in front of infertile women and men—most of the time, listening. My appointments did not last for just five, 10, 15 or 20 minutes. It would be rare for me not to listen to a couple for at least half an hour, and that was true right up to the time of my last clinic. In those consultations, what I saw at first hand, again and again, was something which your Lordships cannot have seen in quite the same way. I saw the pain, the lack of self-esteem, the sense of total failure, the sense of deep bereavement, the anger that these women in particular felt, the despair they showed and the depression they frequently had. Your Lordships, as a House, are asking me, as a doctor, to make a judgment in a situation like that as to who is a suitable parent. You are trying to enforce the unenforceable. This is not a practical proposition.

My Lords—

I am not going to give way, my Lords, I am afraid.

I was very grateful to the noble Lord, Lord Warner, for offering to give way on this occasion, but he said in Committee, just a little sarcastically—uncharacteristically—that he would try to help me as a clinician. Clinicians cannot be helped in this situation—this is a real entity in our clinical practice. To expect doctors ultimately to be policemen is not reasonable. It could be part of the code of practice, but I do not believe it could be a point of law. It simply makes bad law. Nor do I believe these warnings about the dreadful effect on our society. I think that they are simply untrue. The noble Lord, Lord Carlile, made a telling comment. His experience has not in any way damaged his family, and the experience I shall describe in a moment has not damaged the family I want to speak about. I promise that I do not intend to go on too long.

These tears of frustration can be mimicked; they can be synthesised; they can be real. Most of the time, believe me, they are deadly real, and the pain is real enough. But there is no way in the space of a clinic that you can deal with that situation except to listen, try to understand, do your best to empathise and do what you feel is responsible and right. There will be occasions when you clearly have an indication that it would be wrong to treat a couple—perhaps they come from a known family with child abuse problems. But that is extremely uncommon; it is very rare indeed.

Fourteen years ago I saw a lady in my clinic who I came to just in the same way as the noble Baroness, Lady Deech, did, whose view I would unquestionably have shared 30 years ago without the clinical experience I have had. I was determined not to treat this lady. She was HIV positive and it was not clear what her relationship with her partner was. I was sure that it would be wrong to treat her because of the child. But, because I wanted to be open-minded, I gave her another appointment for three weeks’ time. Over the next months, I saw that lady five times in my clinic—I am not exaggerating—and came to the conclusion that she was worthy of treatment. In 1993-94, the diagnosis of HIV was a death sentence, but there was always a possibility that there might be treatment around the corner. It was becoming clear that it might be possible to deliver babies to lower the risk.

I presented the case at our regular meeting in my clinic. When we have a clinic meeting, everybody attends, including the people who clean the clinic, because we want a general view of what everybody feels. Nobody is excluded. Eighty-five members of my clinic turned up for the discussion on this patient, and without a single exception, nobody supported my view that this woman should be treated. They were all prejudiced against the idea because, to them, treating somebody with HIV was abhorrent. I could not treat her single-handedly, and I worked on my team for six months. By the end of that period, it was interesting to see a massive change of view. We treated that lady, whom some of them thought might die or abandon her child. That lady is alive today and the child, who is a teenager, is well.

In her wonderful speech, the noble Baroness, Lady Howarth, made a point about same-sex couples, but this matter goes much wider than that. The biggest single issue in our society is the woman in her late 30s and early 40s. This is increasingly common as women gain skills and education and contribute to society in all sorts of ways. It is not easy for these women to find a partner to live with, but they need treatment because their ovaries are running out of eggs—two or three a day, on average, according to the biological clock. By the age of 40 to 42, they cannot actually conceive. By the age of 42, something like two-thirds of women are seriously infertile. The chance of getting pregnant with IVF by the age of 45 is well under 4 per cent on average. It is not unreasonable, therefore, for these women to present to a clinic without a partner. What are they to do? What is the doctor to do? Of course I agree that the question of the father who gives the sperm is important, but it has nothing whatever to do with this debate. That is about another amendment—the anonymity, or otherwise, is something that we must separate from this argument.

In this amendment, the best we can do is try to find something which at least raises the issue to the clinics and to those counselling in them, and recognises that there is a problem. To my mind, the Government’s amendment does that admirably, and I shall support it.

My Lords, I apologise to the noble Lord, Lord Carlile, for interrupting him from a sedentary position. However, I was deeply concerned that a lawyer, above all, should say that which is not legally correct and which he must know is not legally correct. Civil partnership is not marriage. That was made explicitly clear by the Government during the passage of the Civil Partnership Act. Indeed, if they had declared it to be marriage, it might not have been passed by this House. It is a very great pity that the noble Lord should have said something which, as a lawyer, he ought to have known was not true.

The noble Lord also said that the campaign for responsible fatherhood was lost a couple of generations ago. If that is true, then let us fight the campaign again and win it. Let us not simply say, “It’s gone, it’s lost, forget it, it’s a new world”. The noble Lord also said that science could change ethics. No, my Lords, science cannot change ethics. Ethics are ethics, morals are morals. What is right is right, what is wrong is wrong, and science cannot change that. If that were so, we would be living in a morass, in a world of moral relativism. If there is one thing that is going wrong in the world at the moment, it is that we are losing sight of the immutability of certain rights and wrongs and ethics.

My Lords, like a moth to a flame, I rise to support the Government’s Amendment No. 108 and to set out my opposition to the subsequent amendments. Before doing so, I would like to say what a privilege it has been to read and listen to the debates in this Bill. If or those outside this Chamber or in another place wish to see justification of why we are here, I would ask them to look at the work done on this Bill.

It is easier to create legislation for the kind of world we wish to live in than it is to create laws for the world that we actually live in. The Government have done well in tabling their amendment and have tried to find a way through the issues of the clinic’s obligation to consider a male role model, while keeping the child’s best interest at heart. That means supporting good parents regardless of their sex.

Equality for lesbian and gay people in Britain is a principle now established in law in a range of areas. It is an issue that this House has considered, in detail, in many previous debates and supported time and time again—not least when it approved civil partnership affording same-sex couples equal rights to those of married ones, a move which recognised the long-term commitment made by so many same-sex couples.

Provisions in this Bill would give greater legal recognition to same-sex partners and, more importantly, greater protection to their children. I read the speech made by the noble Baroness, Lady Deech, on Second Reading and have utmost respect for much of what she said. However, on this single point, I disagree with her. In my view, consideration of the potential need for a father should not outweigh the assessment of whether potentially a lesbian gay couple would make good parents or whether a single woman would make a good parent.

No one is trying to substitute the biological father. The Bill is simply trying to allow same-sex couples and single women to have equal access to fertility clinics instead of taking alternative informal routes. We argued that very point in this Chamber when looking at the access to goods and services Bill. It is with some regret that I read some of the claims made during Second Reading about the endurability of same-sex relationships and the suitability of lesbian and gay people as parents.

Let me briefly attempt to put the record straight. Many thousands of couples in long-term, stable relationships have formed civil partnerships but no dissolution figures exist. It is too soon. There is no credible evidence because it is too soon to suggest that they will be disproportionate to the rest of the population.

This Bill will, for the first time, enable two women in a committed relationship to consider starting a family with—and this is the important point—the support of the fertility clinic. That is at the heart of the issue. The Bill would allow the women to start their family with the support of the fertility clinic. The present requirement upon such clinics is to support the potential need for a father before granting the treatment. That can encourage some women to make informal arrangements outside the protection of formal healthcare and that should be avoided.

This is a narrow and specific question, not a broader one of fatherhood. No one is trying to replace the father. It will not deter many of these women from having children. It will simply drive them away from the services they pay for and have a right to expect.

I say to the noble Baroness, Lady Deech, that while I respect her argument in pr