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Lords Chamber

Volume 698: debated on Monday 4 February 2008

House of Lords

Monday, 4 February 2008.

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

Prayers—Read by the Lord Bishop of Southwell and Nottingham.

Influenza Pandemic

asked Her Majesty’s Government:

Whether the concept of key workers still exists in planning for a possible influenza pandemic.

My Lords, our approach to responding to a pandemic requires employers to take responsibility for deciding how best to protect their staff during a pandemic. Our plan is for symptomatic patients to be treated irrespective of the profession to which they belong. If the pandemic virus necessitates any form of prioritisation, the decision will be taken in the light of evidence available at the time. This would also inform our plans for any subsequent vaccination programme.

My Lords, I am grateful to the Minister for that reply. If the Government are to defer the decision on how best to use the pandemic-specific vaccine, which I believe can be prepared only five or six months after the first wave of outbreak, will the noble Lord say which criteria they will use, whom they will consult before arriving at a decision, and whether other partners such as faith leaders will be part of that consultation?

My Lords, this will be a clinical decision, based on the prevailing circumstances and certainly on the stocks that become available. Decisions of this nature are difficult. However, we believe that initially limited supply will depend on the clinical impact of the pandemic. For example, if certain population groups are more severely affected, other members of the same group might be inoculated once a vaccine becomes available. A pandemic-specific vaccine could also play an important role in preventing a second pandemic. As for consultation, we will consult our advisory groups, which include both the scientific and ethical communities.

My Lords, a short time ago a government Written Answer said that supplies of the H5N1 vaccine were being held by the Department of Health on behalf of the Ministry of Defence. Will the Minister say what proportion of the antiviral stockpile has been allocated for the exclusive use of the Armed Forces, and how many courses of antivirals have been taken out of the country?

My Lords, the stockpile of antivirals is currently for about 25 per cent of the population whom we envisaged will be infected. That stockpile—that resilience—is being increased to 50 per cent. I am not sure of the exact number that has been assigned to the Armed Forces, but I will be more than happy to respond in writing.

My Lords, would the Minister care to comment on recent press reports suggesting that recent strains of the H5N1 virus isolated from birds on the Continent have proved to be resistant to the Tamiflu remedy which has been stockpiled by the Government to be used in the event of an epidemic?

My Lords, I am not aware of that scientific study. However, so far as we are aware, while one of the antivirals we have is Tamiflu, we are looking at other antivirals in the field. One of the issues in relation to pandemic flu is knowing exactly which strain it is and its sensitivity to antivirals.

My Lords, does the noble Lord accept that H5N1 is turning out to be a fairly stable virus and that it is now considered unlikely that humans will get it? Does he agree, however, that a number of bird flu virus strains might be potentially much more dangerous because they are not so stable?

My Lords, I agree with the noble Countess. The issue is not knowing which of the mutated viruses will be responsible for the next pandemic, or whether it would be through the mutation of a human or an animal virus. What is important from the Government’s perspective is to be ready for a pandemic irrespective of the virus or the strain, and that is what the Government are providing leadership for with stakeholders involved in the management of such a pandemic.

My Lords, in November 2007 the Minister in another place said that the Government were undertaking research into prioritising at-risk groups for vaccination. Can the Minister tell us what progress has been made in identifying those at-risk groups and on the prioritisation of resources?

My Lords, as things stand at the moment the Government have a stockpile of H5N1 vaccine. If that is the strain responsible for a pandemic, the NHS will provide that vaccine for health workers within the NHS.

My Lords, I think I am right that the Minister has said that it would take five or six months to produce a vaccine. How long does he anticipate that a pandemic would last? Would there be time to produce a vaccine?

My Lords, it is very difficult to predict the exact timing of a pandemic. Indeed, we are not even sure whether we would get a second or even a third wave of it. The first pandemic in 1918 had a second and a third wave, while the pandemics of 1957 and 1968 both had a second wave. In our modelling we usually predict that it would take about six months, giving us enough time to create a vaccine against the strain that was infective in the first pandemic.

My Lords, in the event of an influenza epidemic in this country, would GPs deliver all the vaccinations required in their surgeries or are there other plans to make sure that the population is properly dealt with?

My Lords, the primary care community will have a significant role to play in the provision of vaccinations, but the national flu line will be available during a pandemic which will ensure that supplies are sent through the mail for GPs’ patients or to local communities in order to provide vaccinations. We have highlighted through a number of educational websites and through the BMA and colleagues at the way in which we could educate healthcare workers in the provision of vaccinations.

My Lords, can my noble friend tell us what the situation is with our friends on the Continent with regard to vaccines? If there was a shortage of vaccine on the Continent, would we supply stockpiled vaccines from this country even if for no other reason than to protect ourselves from a possible spreading pandemic?

My Lords, we have taken precautions to avoid that eventuality. The possibility of export bans was discussed during the negotiations process for the advanced supply contract. As a result, the risks of nationalisation or the closure of borders have also been minimised as far as possible with the following provisions. First, the production facilities must be located in the EU and remain within the EU unless the UK Government give written consent otherwise. Secondly, manufacturers have warranted that the host country of production has either already sourced all the vaccines it needs for its own population or it is aware of its commitments to the UK Government.

Medical Education

My Lords, following the difficulties in 2007 with the implementation of MMC, we have made changes this year in line with the recommendations from the programme board. Recruitments to most specialty training posts are held by the deaneries at a local level. There is no limit to the number of applications an individual can make. Sir John Tooke has produced an excellent report and we intend to respond to many of his recommendations by the end of this month.

My Lords, I thank the Minister for that comprehensive reply. Bearing in mind the great complexity of and, indeed, the tragic history of the department in attempting to manage medical careers, will the Government accept Sir John Tooke’s 47th recommendation—that a new body, NHS Medical Education England, be formed to co-ordinate and maintain standards across the country, as has proved so successful in Scotland? As uncertainty is so damaging, will the Government announce their decision on this recommendation at the end of this month?

My Lords, recommendation 47 in Sir John’s report is a very creative idea and is receiving careful consideration. It is important to remind the House, however, that it was not in Sir John’s interim report, which was published in October, so we have had very little time to consult on it. There are good things about the idea but we have learnt, not least through MMC, as I am sure the noble Baroness will agree, that structures without clarity and explicit lines of accountability can create major problems. We will respond to this recommendation as soon as possible as part of our reply to Sir John’s report. We also need to consider it within the context of the next-stage review and some of the national working groups, which also involve the professional bodies, in coming up with the final decision.

My Lords, given the oversupply of medical students choosing oversubscribed specialties such as the Minister’s own in surgery, what plans do the Government have to encourage medical schools to divert some medical students into undersubscribed specialties such as mental health and other branches of medicine which may appear less attractive at first sight?

My Lords, I am grateful for the noble Baroness’s intervention. She makes an extremely important point. I strongly believe, as she does, that trainees must have more information in guiding them to a final conclusion on what type of specialty they should end up in—particularly at undergraduate level—so that their expectations can be in line with service needs. For example, when I was a trainee, for my first job I wanted to apply to become a brain surgeon, but I realised very quickly that the opportunities in that area were fairly limited. We need guidance and support for trainees, not in their postgraduate years but in their undergraduate years, to ensure that they go into the right specialties.

My Lords, in a letter to me on 24 January the Minister explained that money for medical education and training would not be ring-fenced at trust level but would be based in 2007-08 on,

“a new Service Level Agreement ... and accountability framework”.

Can he explain how this framework will work and how we can ensure that education and training will be protected at trust level?

My Lords, the role of the Department of Health should be to focus on outputs and accountability rather than on ensuring that fixed amounts of money are spent on a particular purpose. For that specific reason, the service level agreement and the accountability framework issued in 2007-08 on the MPET allocations ensure that SHAs and other providers are held to account for the training they support for healthcare students and the NHS workforce, so that they develop the workforce needed to deliver the services required by patients rather than spend that money elsewhere.

My Lords, what arrangements are the Government making to ensure that doctors can still gain experience abroad as part of their education and training? Conversely, what arrangements are being made to ensure that the UK maintains its leading position as an educator of doctors in developing countries, whether that is done at home or abroad?

My Lords, if a trainee seeks a fellowship abroad—which usually means transatlantic—there are the right structures within the deanery to ensure that that individual could take a year or two to gain further experience abroad. I am aware that many of my trainees are seeking some form of post-training fellowship in the US and, in some cases, South Africa. With regard to the UK being a centre of excellence in providing training for those who come from abroad, that is well known historically. The challenge for us now with postgraduate training is how to ensure that preference is given to our UK graduates and that the gaps are then filled with others from abroad.

My Lords, one of the major casualties of the new training arrangements has been the loss of the team approach to care in hospitals. At one time we used to have the consultant, the trainees, the nurses and others working in a cohesive and co-ordinated way on patient care, but most of that has been lost as we have seen a rise in rotas, shifts and the shortening of hours. Is there any way the Minister can see to redress that balance? If he does so, he will earn even more respect than he already has.

My Lords, I could not agree more that the spirit of any team is based on the integrity of that team and, from a patient perspective, the continuity of care. However, we are all aware of certain working time directives, although as it stands the current WTD is coming up to 48 hours a week. We need to ensure that we also have doctors who have slept through the night and are at their full competence when seeing patients. It is a matter of balancing the sleeping hours with the teamwork. I have no doubt that at a local level, with some creative solutions, we can help maintain the integrity of such teams.

House of Lords: Accommodation

asked the Chairman of Committees:

What arrangements have been made to accommodate Members and staff during the work on 1 and 2 Millbank.

My Lords, the House has secured accommodation in 14 Tothill Street for use as decant space during the refurbishment of the Millbank island site. Staff currently located in 2 Millbank will relocate to 14 Tothill Street for the duration of the refurbishment works. Office space suitable for use by Members will be provided in 14 Tothill Street and elsewhere in the parliamentary estate. Noble Lords will be informed of the arrangements at the earliest opportunity.

My Lords, I thank the noble Lord for his reply. I have to declare an interest as one of the 71 Peers who will be evicted from 2 Millbank in July this year. It should be a day of celebration for every Welsh man and women, but it is also a day of distress for us. Does the Chairman of Committees agree that every Peer who is appointed as a working Peer needs at least a desk, a filing cabinet, a telephone and a computer to fulfil his obligation? Secondly, does he agree that some offices are luxurious, with many sofas, and that each sofa could be replaced by a desk? The communal rooms, especially the Salisbury Room, which is often totally empty, could, for the duration, be adapted for the use of the working Peers.

My Lords, I cannot discriminate to say who are working Peers and who are not. All Peers are working Peers these days. I assure the noble Lord that all Peers who are currently in 2 Millbank—I am well aware that he himself is one of them—will be offered accommodation in Tothill Street, the palace or one of the outbuildings. No one will go without. It is also intended that additional computer terminals will be provided within the Library and the Writing Room to facilitate those Members who may not require a desk but who wish to be able to access a computer.

My Lords, would one not have to be faster than the Welsh wing to reach the House from Tothill Street in time for a Division?

My Lords, as an Englishman who watched the game on Saturday afternoon, I think I would rather not say awfully much about it. It was a good first half.

The time that it takes to get from Tothill Street to the House is seven minutes. Were it necessary to look into the time for Divisions, that could be done.

My Lords, when is the House going to allow wi-fi access for computers? That would make much better use of the entire establishment of the Palace of Westminster, it would abolish the need for many offices and it is vital for those of us with laptops.

My Lords, I cannot answer precisely the point made by the noble Lord. I believe that wi-fi access is available in certain places—I have seen it in the Corridor by the Library—but I take on board his point and come back to him.

Will the Chairman of Committees confirm that the addition of the island site will enable most Peers eventually to have an office— sometimes sharing but mostly for themselves? Will he confirm that yet again, particularly since, with reform coming along, the total number of Peers will presumably decline?

My Lords, I cannot possibly comment on the second part of the noble Lord’s question. The purchase of the whole of the island site was made possible by the reviews that underpinned the need for better accommodation for Peers. If it was as easy as many people would like it to be to accommodate occupants of 2 Millbank within the palace or elsewhere, there would have been no justification for buying the whole site.

My Lords, am I not right in thinking that there is empty accommodation only a short distance down Millbank that is owned by the House of Commons? Have there been discussions on the use of that accommodation? It would be more convenient and save public funds.

Yes, my Lords, there have been discussions and they have been fruitless, as far as this House is concerned.

My Lords, may I congratulate the Chairman of Committees on the hard work that he and other staff in the House have put in to organising this move? When I first came to the House of Lords, it took me 11 years to get a locker and 25 years to get a desk. I very much appreciate the facilities that I have now. As these arrangements are temporary, perhaps we ought to be a little more patient with the noble Lord.

My Lords, I am very grateful to the noble Countess. Not that long ago there was not the demand for desks that there is now in the House. As I said earlier, the review pointed out the need for proper working arrangements for everybody. That was why we went ahead with the decision to buy the whole of the Millbank site.

My Lords, having spent 12 years in the dungeon here—meaning a room in the basement where there is no window—can the Chairman of Committees assure me that everyone will have natural daylight and air in their rooms in the new development?

My Lords, when we eventually go to the sunlit uplands of 2015, when we occupy the whole island site, I am sure that everybody will have a palace.

My Lords, can the Chairman of Committees remind us when the Law Lords are due to leave and how their accommodation is to be reallocated?

My Lords, that is a very good question. As I understand it, the Law Lords will be leaving next year and that will free up some 26 rooms on the second floor.

My Lords, does all this fresh accommodation mean that there will be somewhere for Ministers to have talks and meetings with Foreign Ministers? There is, in my experience, a tremendous shortage of such rooms now.

My Lords, there will be more meeting rooms. In the first phase for Millbank House, there will be, I think, five meeting rooms, which the House rather lacks at the moment. When we get towards the whole of the occupation of Millbank in 2015 we also need to review the accommodation in the palace itself, which should facilitate the type of meeting rooms to which the noble Baroness referred.

Universities: A-levels

asked Her Majesty’s Government:

Whether they have assessed the extent to which universities retain confidence in A-levels.

My Lords, A-levels remain the best single indicator of success at undergraduate level and continue to be central to the admissions process. The recent report by the 1994 Group of universities shows widespread welcome for changes being made to A-levels to ensure that they provide the right level of stretch and challenge for those going on to higher education. The same report was also positive about the use that universities would make of the new diplomas in admissions.

My Lords, I thank the Minister for his kind Answer. I hope that he will not think me discourteous if I say that he is being overoptimistic. Increasingly, large numbers of senior academics have questioned the value of A-levels, especially for the more demanding academic courses. Further, many schools are changing to alternatives to A-levels; that is, the international baccalaureate and the Pre-U course. Will the Minister reassure me that my anxieties are groundless?

My Lords, all I can do is quote from the report by the universities, to which I referred in my Answer. The report was by the 1994 Group of universities, which includes Exeter, Durham, Essex, Reading, Warwick and York. In a statement at the launch of the report, Professor Steve Smith, who is vice-chancellor of the University of Exeter and chairman of the 1994 Group, said:

“The 1994 Group welcomes the significant steps the government has taken to reform the 14-19 curriculum. The centre-piece of this package of reform is the launch in September 2008 of the 14-19 Diplomas, alongside the introduction of the Extended Project and changes to the structure and grading of GCE A-level courses … We recognise the strong potential the diplomas offer, coupled with A-level reform and the Extended Project, to provide the stretch that is needed to demonstrate the quality of school leavers at the highest level of achievement”.

We see no reason to believe that the universities lack confidence in the current system.

My Lords, does the Minister agree that one of the immediate needs is for the QCA and the awarding bodies to review a number of the applied A-levels so that they provide relevant, challenging and motivating courses for young people?

My Lords, my right honourable friend the Secretary of State announced in October that, based on the advice of the expert advisory group that he appointed at that time, we would bring forward for consultation our 14-to-19 qualification strategy early this year, which will include consideration of applied A-levels within the overall A-level offer.

My Lords, while I welcome what the Minister said about stretch and challenge, may I ask him all the same whether he agrees that A-levels should never have been termed the “gold standard”? Is he aware that many, good sixth-form teachers have always considered that teaching to the A-level syllabus involves a dumbing-down of sixth-form education and that, for far too many young people, the struggle to obtain, let us say, a D and an E at A-level represents a travesty of what their education might have been?

My Lords, neither I nor the current Government started calling A-levels the “gold standard”. The issue here is whether universities have confidence in them. All the evidence that we have shows that they have confidence in the existing A-level and also welcome the changes that we are making, which include reducing the number of units in A-level from six to four, the introduction of the extended projects and a new A* grade to reward best performance. We are mindful of the need to continue improving the A-level, but do not see any lack of confidence in them on the part of universities.

My Lords, does the Minister accept that great confusion exists about the wide range of school-based qualifications? There is a danger of that getting worse when the new diplomas get under way. What are the Government doing to ensure that people understand the value of the new diplomas? Will they not consider a more integrated system that can easily be understood by students, universities and employers, and will avoid closing any doors too early on any young student?

My Lords, the introduction of the diplomas will involve a rationalisation of a very large number of current qualifications. Part of the reason for bringing them in is to avoid the confusion, complexity and duplication which exist at present. The noble Baroness is right that young people need to be given the right advice in schools, which is why the role of careers and Connexions advisers is vital. However, as the diplomas are introduced—they are being introduced progressively for only a small number of students from September—we will ensure that advice on them is made available, too.

My Lords, what discussions are going on within the universities about the possibility of introducing a requirement for a qualification in a foreign language, irrespective of the degree subject to be pursued? This might be an addition to the current offers, based on A-level achievement. Would the Minister welcome such an additional requirement?

My Lords, the matriculation requirements for universities are, rightly, a matter for the universities themselves. They are not a matter for the Government.

My Lords, I think everybody understands what A-levels are and the qualifications necessary to achieve them. Does the Minister agree that we want to make sure that the general public understand any new qualification that is brought forward? Public confidence is very necessary.

My Lords, I fully agree with the noble Baroness. That is precisely why, in respect of the new diploma—the substantial reform taking place in this area—the introduction is progressive and will take place over the next few years. It goes hand in hand with a big extension of careers advice and public information on the diplomas, as well as engagement with employers and the higher education world. It is vital that employers support these qualifications.

My Lords, as the Minister knows, I have long been concerned that A-levels force students into far too narrow a path. It is clear that many noble Lords agree. The majority of students getting into our top universities to study science and engineering are essentially required to study only science and maths subjects if they are to be successful in their admission. They can clearly benefit from a much broader range of subjects. Will the Minister take on board what a lot of noble Lords have said today and introduce an alternative to A-levels, and be clear about the recommendations for those alternatives, so that students have a much wider choice of subjects?

My Lords, the international baccalaureate is already available. This provides a more broadly based post-16 qualification, meeting the criteria that the noble Lord has set out. That is available at the moment in an increasing number of state schools and colleges, and within the private school sector. It is the Government’s policy that it should be available from at least one provider, be it a college or a school, in each local authority area. However, we do not believe that it is right to deprive young people of the ability to choose to study A-levels, as they can at the moment. As the noble Lord, with his immense experience of the university world, will be only too well aware, opinions in the maths and science community are by no means unanimous on this subject. There are many admissions tutors and teaching professors, including some in our top universities, who would not welcome any dilution of the concentration which sixth-form students are currently able to give to give to maths and science. That is part of the reason why there is at the moment no consensus about the move towards a more broadly based baccalaureate system post-16.


My Lords, this afternoon we have the Third Reading of the Human Fertilisation and Embryology Bill. For a Third Reading, we have quite a few amendments to consider. I hope that noble Lords will bear with me if I remind them of our rules on Third Reading. First, the Companion makes it clear that arguments fully deployed at earlier stages should not be repeated at length on Third Reading. Secondly, in January 2006 the Procedure Committee agreed that the practice of the House is normally to resolve major points of difference by the end of Report, and to use Third Reading to tidy up the Bill. Peers who have tabled amendments that are similar or identical to amendments debated in some detail at earlier stages will no doubt reflect on this guidance as we approach this afternoon’s debates.

I should also alert the House that there is a Statement today in the Commons entitled “Inquiry: HMP Woodhill”. With the leave of the House, it will be repeated by my noble friend Lord Hunt of Kings Heath at a convenient time after 3.30 pm.

National Insurance Contributions Bill

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

Joint Committee on Human Rights

Intergovernmental Organisations Committee

My Lords, I beg to move the two Motions standing in my name on the Order Paper.

Moved, That Lord Bowness be appointed a member of the Select Committee in place of Lord Fraser of Carmyllie, resigned; and that Baroness Eccles of Moulton be appointed a member of the Select Committee in place of Lord Bowness, resigned.—(The Chairman of Committees.)

On Question, Motions agreed to.

Disabled Persons (Independent Living) Bill [HL]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

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

Human Fertilisation and Embryology Bill [HL]

Read a third time.

Clause 3 [Prohibitions in connection with embryos]:

1: Clause 3, page 3, line 21, leave out “Regulations” and insert “A licence”

The noble Lord said: My Lords, within the past few weeks there has been a major development in the field of human neuromuscular disease in that the Medical Research Council has established a major research centre for the study of such diseases jointly between University College London and Newcastle University. An inaugural symposium was held last Friday at which I was privileged to be present and to hear an outstanding lecture by one of the world’s experts on mitochondrial disease, Professor Salvatore DiMauro from New York.

I am not going to be repetitive as I heard what the noble Baroness said about arguments previously set out at Second Reading and in Committee. Mitochondrial disorders are a cruel class of inherited disease that are life-threatening conditions and are coupled with great unpredictability about how future children will be affected. They can include blindness, fatal liver failure, stroke-like episodes, mental retardation with intractable epilepsy, profound muscular weakness, diabetes and deafness. There are 29 mitochondrial genes, but in them there are 200 mutations, all of them harmful, as Professor DiMauro said last week.

The subject of this amendment is a process whereby it is theoretically possible to remove from a woman with the mitochondrial abnormalities in the cytoplasm of her ovum the nucleus containing 99.95 per cent of her DNA and transplant into a cell from which the nucleus has been removed a donor ovum with normal cytoplasm and normal mitochondria. Recently, Professor Douglass Turnbull from Newcastle University has taken matters further. Through a simple process of in vitro fertilisation an ovum from a woman with mitochondrial disease has been fertilised by her partner or husband’s sperm, and as soon as the first cell is formed it contains two pronuclei, one from the woman and one from the partner or husband containing 100 per cent of the partner’s DNA and 99.95 per cent of her DNA. That process has been successfully carried out under licence from the HFEA. The licence, however, does not allow that fertilised ovum to be transplanted into the uterus of the female from whom the original ovum was derived.

Professor Turnbull has completed excellent research in animals since he received a licence in 2005. The embryos created by this IVF technique have proved to be perfectly normal and viable. The purpose of this amendment, crucial to the future of huge numbers of individuals with this group of mitochondrial diseases, is not to require that the issue has to be further reconsidered by introducing regulations to be debated by both Houses of Parliament, but to enable the HFEA, after careful consideration of all the ethical and scientific consequences, to award a licence for treatment by the implantation of fertilised ova, with the consequence that the women in question will be able to have normal children with no risk of mitochondrial disease. I beg to move.

My Lords, the difficulty with this amendment is that it was introduced at Committee stage but was not reintroduced at Report stage. The noble Baroness, Lady Royall, was right to remind us at the outset of proceedings this afternoon about the guidance of both the Procedure Committee report of 2006 and of the Companion to the Standing Orders. This issue ought to have been concluded at Report stage, rather than here at Third Reading. I have no doubt that there is a lot in what the noble Lord said. He is one of the great authorities on mitochondria. But there are differences between Members of your Lordships’ House over the way in which we should proceed—whether we should create embryonic stem cells to deal with this disease or whether we can use reprogrammed adult cells.

In many ways, this amendment is linked to the next one, tabled by the noble Baroness, Lady Barker, and the noble Lord, Lord Walton, which is about purposes of infertility. These two amendments could include the making of embryos with altered nuclear and mitochondrial DNA cells added to the embryo other than their own cells. An embryo would not need to be made by fertilisation. This amendment cannot be considered in isolation. It would be better considered when this Bill goes to another place and is considered in Committee there. It is best left to the proceedings that will ensue there rather than being resolved today. It was not considered in the scrutiny committee, it was not considered at Report stage in our proceedings and, as we do not have the chance to reflect properly on the implications of what my noble friend has said to the House today, it would be better resolved at a later stage of the Bill.

My Lords, the Government have made clear on a number of occasions our recognition of the serious and debilitating medical problems that can result from mitochondrial diseases and our support for research into understanding and developing treatments for those diseases. The noble Lord, Lord Walton, may recall that the Government accepted the recommendation made in June 2000 by the Chief Medical Officer’s expert group on stem cell research that this type of research should be permitted subject to the controls of the 1990 Act and that we subsequently brought forward regulations to achieve that. The Government are aware that promising research is under way that could lead to the development of methods for avoiding serious mitochondrial diseases. We are grateful to the noble Lord for his update following Friday’s symposium. We took full account of this research in drawing up our proposals in the draft Bill and subsequently in the Bill presented to this House.

The Bill provides, in new Section 3ZA in Clause 3, a power to make regulations covering eggs or embryos that have had applied to them, in prescribed circumstances, a process designed to prevent the transmission of serious mitochondrial disease. There is always a powerful case to be made for anticipating future developments in the Bill so that no time is lost if research bears fruit quickly. However, in this case there are a number of reasons why the Government have opted to come back to Parliament with future regulations to be decided by affirmative resolution, and we believe that this remains the most appropriate route. I assure noble Lords that we keep developments closely under review, as does the HFEA with its horizon scanning panel.

The safety aspects of implanting an embryo that has undergone a process of mitochondrial repair would need to be assessed carefully before this could be deployed as an option for patients. Moreover, the status of the egg donor in these circumstances—the person providing the healthy mitochondria only—would need to be considered, and we feel that further consultation is needed on this. This may be rather a different case from the current situation of egg donors. These are issues that we believe Parliament should be asked to take a view on when more facts are available about what the therapy involves, and what implications follow. We have ensured that the Bill contains the flexibility to return to this issue, in recognition of the progress being made. I hope that noble Lords will not feel it necessary to press this amendment before Parliament and the public are fully able to assess the implications of that progress. I hope that the noble Lord will withdraw his amendment.

My Lords, I listened carefully to what the Minister said and I appreciate entirely the Government’s stance on this issue. Perhaps I should say to my noble friend Lord Alton, who spoke on the amendment, that this has nothing to do with stem cells; it is, in fact, simply in vitro fertilisation involving a subsequent pro-nuclear transfer. It is therefore a very new technique, which is why I worded the amendment slightly differently from the one that I tabled in Committee. This is new and exciting. It will be the first time in the world that this type of therapy or prevention of mitochondrial disease will be achieved. If I can get an assurance from the Minister that regulations will be introduced as soon as possible in relation to this issue, I shall be happy to withdraw the amendment.

My Lords, the noble Lord can certainly have that assurance. In the mean time, we have to ensure that proper debate takes place among the public on these very important issues, and we will come back to Parliament in due course when they have all been considered. However, I assure the noble Lord that we shall not wish to lag behind in any way.

2: Clause 3, page 3, line 26, at end insert—

“(5A) Regulations may provide that—

(a) an egg can be a permitted egg, or(b) a sperm can be a permitted sperm, even though the egg or sperm has been developed from one or more human cells in a prescribed process designed to treat infertility.(5B) Regulations under subsection (5A) may

(a) provide that any sperm be developed from one or more cells of a genetic male and any egg be derived from one or more cells of a genetic female.(b) specify, or otherwise restrict, the nature of the infertility which the prescribed process is intended to treat.”

The noble Baroness said: My Lords, I am mindful of the noble Baroness’s reminder to us all of the procedure at this stage of the Bill and therefore I intend to speak only briefly to the amendment, which noble Lords will acknowledge I move in the absence of the noble Lord, Lord Patel.

On Report, we had a debate about this issue in which it was clear to all noble Lords that the potential to create artificial gametes offers an unprecedented opportunity in the treatment of infertility. Nevertheless, it is a scientific development that carries potential ethical questions, and it is important that Parliament debates the matter fully in order that scientists are given a clear indication of what the ethical limits to such scientific developments should be.

There are two main reasons for raising the amendment today in this form. The first is to stress, in a way that the noble Lord, Lord Patel, did not during our earlier debates, that we are talking here only about the treatment of infertility. This is not about the production of artificial gametes for any other purpose.

The second reason is perhaps more substantial. Noble Lords will remember that during our debates on the previous occasion, in replying to the noble Lord, Lord Patel, the noble Baroness said that the Government had some concerns that there may be issues of human rights compliance under Article 14. Therefore, the noble Lord, Lord Darzi, helpfully wrote to all Peers who had taken part in our debate on 31 January setting out the Government’s response to a number of different issues. However, he did not mention what those concerns were in relation to this matter. Therefore, to enable Members of this House and of another place to understand the Government’s concerns fully, can the noble Baroness tell the House what they are in relation to Article 14? I realise that we are not in a position to resolve this issue today but I think that that would be helpful in enabling Parliament as a whole to take this matter to the point where it should be, which is as a potentially very exciting treatment for infertility and power to do good. Can the noble Baroness also tell us whether this matter will be discussed when the Bill goes to another place? I beg to move.

My Lords, I hope that paramount in the Minister’s answer will be the question of the safety of these techniques. It is very important to understand that the maturation of a gamete which has been artificially derived is a very complex procedure. It requires careful maturing of different events within the egg cell or the sperm cell. It has to ensure that the chromosomes are correct. It has to ensure that all the genes are expressing in a normal way. None of us wants to assume that this technique is going to be rapidly here. It is excellent that it is on the statute book but I hope that the Government will recognise that this has potential risks for the unborn child which need to be taken into consideration at whatever stage this technology is finally introduced. In my view, a huge amount of animal work will be needed before one can contemplate this procedure going to the human embryo.

My Lords, I strongly support the comments just made by the noble Lord, Lord Winston. I remind the House that the Minister herself said:

“There is no way in which the Government could consider this issue in depth, as we would have to, before Third Reading. Therefore, I ask the noble Lord”—

it was my noble friend Lord Patel—

“to withdraw his amendment, on the understanding that we will look at it further in the other place”.—[Official Report, 15/1/08; col. 1202.]

I am sure that is the right way to proceed rather than asking the House to come to a conclusion on this issue today.

It was also suggested that Comment on Reproductive Ethics, an organisation known as CORE, was in support of this amendment. I have taken advice from CORE and it says that in fact it is very strongly opposed for reasons that I set out to the noble Baroness, Lady Royall, last Friday in a letter. I do not intend to labour those points today but it is important for the House to understand that if this amendment were accepted in its present form, it would allow genetically engineered embryos, embryos created by cell nuclear replacement techniques, embryos produced by artificial gametes in numerous ways, a combination of those things, and something that I alerted the House to on Report—a technique developed by Professor Shinya Yamanaka at Kyoto associated with adult stem cells where it would be possible to create gametes from adult cells and for one person, therefore, to be both father and mother to a child. Before we agree to anything quite so profound, surely the House and society at large would want to consider that matter much more carefully.

My Lords, the Bill seeks to prohibit placing in a woman any embryo, sperm or egg other than a permitted embryo, sperm or egg. New Section 3ZA defines permitted embryos and gametes. With respect to gametes, this means that only an egg produced or extracted from a woman’s ovary or sperm produced or extracted from a man’s testes can be used in treatment. The Bill does nothing to prevent the creation or use of other types of gamete, including so-called artificial gametes for the purpose of research. The use of artificial gametes, or in vitro-derived gametes as they may also be called, refers to the creation outside the body of eggs and sperm from stem cells. If this technology were to be used in treatment, it would enable, for example, an infertile man who does not produce sperm to have a genetically related child. At Report stage we heard some persuasive arguments on the use of in vitro-derived gametes and we acknowledge that there is a lot of support for a regulation-making power that would allow at some point in the future gametes derived in such a way to be considered to be permitted gametes and therefore to be used in assisted reproductive treatment.

This amendment is different from the one discussed on Report. It therefore requires different consideration and raises new concerns. Following the debates in Committee and on Report, we have had discussions with scientists about the derivation of sperm and eggs from stem cells. We are also gathering information about progress in this area and the feasibility of this technology for use in treatment. This advice is in part being obtained from the HFEA’s Scientific and Clinical Advances Group and its international horizon scanning expert panel and from discussions with other scientists and stakeholders.

The amendment tabled by the noble Lord, Lord Patel, introduces a regulation-making power that would allow regulations to be made specifying a process to create eggs or sperm from one or more human cells. That is a relatively broad power as it does not limit the way in which these gametes can be created. However, it provides for the possibility of limiting who could use this technology—for example, limiting its use according to types of infertility or to same-sex couples wishing to have a child related to both partners. Developments in the field of assisted reproduction and embryo research can be fast moving, and the area of artificial gametes is no exception.

As recently as 2 February the journal New Scientist reported views from some research scientists that it may, in principle, be possible in the future for eggs to be created from the stem cells of men and sperm from the stem cells of women. That possibility, distinct though it may be, means that the Government must give serious consideration to what other technologies may realistically become available to determine the scope of any regulation-making power. Although the amendment would allow for the power to be limited, it would not necessarily be. Careful consideration would need to be given to such limitation to ensure that it is not discriminatory. Of course, such technologies may be too far off to make any predictions about their use, but the Government are committed to exploring possibilities with the scientific community.

The noble Baroness, Lady Barker, asked about human rights and Article 14. The Government’s concern relates to Article 14 of the ECHR in conjunction with Article 8 on the right to privacy. The Government are concerned about whether the technique is available for same-sex couples or whether they will be treated differently. If they are treated differently, the Government’s view is that this must be justified to comply with Article 14 of the ECHR. Techniques for same-sex couples may be a lot further off or unsafe at this moment, and different treatment may be justified, but we are exploring these issues and will consider them further in the Commons.

The issue of safety was raised by my noble friend Lord Winston. The safe use of any gametes derived in vitro is of prime importance, which is one of the issues that we are currently considering with scientists and the wider world. Noble Lords have debated extensively issues around fathers and mothers. The use of in vitro-derived gametes could mean children being born without a genetic father in some circumstances or a genetic mother in others. That also raises the question of whether this issue is for secondary legislation, or more appropriate for revisiting as primary legislation when more facts are available about what is envisaged in practice.

I trust that our commitment to look at this further in the other place and the progress made to date in initiating this process will reassure noble Lords of our intention to consider this issue fully. With that assurance I hope that the noble Baroness will withdraw the amendment.

My Lords, will the noble Baroness undertake to set out in a letter to noble Lords the restrictions currently in place to prevent a scientist bypassing the Human Fertilisation and Embryology Authority to create a child using the gametes from just one person?

My Lords, I shall certainly write to the noble Lord, send a copy to noble Lords who have participated in the debate, and place a copy in the Library.

My Lords, I thank all noble Lords who took part in the short debate. I particularly welcome the intervention of the noble Lord, Lord Winston, for bringing us back to present reality. Nevertheless, it was extremely helpful for the House to hear the noble Baroness set out precisely the concerns under Article 14 of the ECHR. I very much welcome her undertaking that this matter will be looked at again in more detail in the Commons. I take the point made by the noble Lord, Lord Alton, that it is a difficult issue that needs detailed scrutiny by Parliament—perhaps on several occasions. I thank the noble Baroness for her answer and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Prohibitions in connection with genetic material not of human origin]:

3: Clause 4, page 4, leave out line 32 and insert—

“(e) such other embryo, not falling within paragraphs (a) to (d), which contains the DNA of a human and the DNA of an animal, in which the DNA of an animal does not predominate throughout the period of its keeping or use”

The noble and learned Lord said: My Lords, this amendment attempts to provide in the Bill an explanatory definition of the principal term used. Since the Bill commenced its proceedings in this House, considerable progress has been made in achieving a satisfactory definition. I am grateful to the Bill team, who have given me a lot of time in discussing this, and to distinguished scientists Professor Martin Bobrow and Robin Lovell-Badge, who helped in the formulation of the amendment. I understand from the letter the Minister kindly sent me at the end of last week—copied to others who took part in the debate—that the Government are moving in a direction which may not be far from this amendment, and that they would like to continue consideration of it in the Commons. I beg to move.

My Lords, the issue of defining human admixed embryos has long vexed all those who have tried to tackle it. It was probably the topic that the Joint Committee of both Houses that scrutinised the draft Bill spent most time considering. That was followed by a specific inquiry on the issue by the Science and Technology Committee of the other place. Noble Lords will agree that it has been the subject of most interesting and helpful debate while the Bill has been in this House. That the terms used during this process have ranged from “hybrids” and “cybrids” to “interspecies embryos” and “human admixed embryos” is indicative of how thinking on this has been modelled and shaped as views and debate have developed. I recall comments being made that the scientists who are expert in this field themselves struggled to reach a consensus on how to define an embryo. That indicates the difficulty that the Government and noble Lords have faced in trying to define the appropriate way through this complex and important area.

Throughout this period, we have been highly fortunate to have the input of the noble and learned Lord, Lord Mackay. His views and amendments have been most welcome, and have given us a great deal of cause for thought. The definition of human admixed embryos in Clause 4 is accepted as hitting the mark by stakeholders, such as scientists working in this field, the Home Office and the HFEA, and this reflects the pressing of the Government by the noble and learned Lord to get this right. We should all thank him for that.

We are now facing what we hope will be the final steps in this journey. At the moment, Clause 4 includes a regulation-making power to extend the definition of human admixed embryos if necessary. It has been included to ensure that if someone comes up with the type of human-animal embryo at the human end of the spectrum that is not captured by the definition, there is a power to extend the definition to catch it. This is a future-proofing mechanism. The noble and learned Lord is concerned that such a future-proofing provision is too broad and does not have relatively easy-to-understand phrases to indicate what it covers. His amendment seeks to make the provision more specific by applying it only to cases where the human DNA, not the animal DNA, predominates. His aim is to reflect the Government’s intention that the Bill ensures that the HFEA regulates human-animal embryos at the human end of the spectrum.

Yet, much as we are grateful for the hard work which the noble and learned Lord has put into this, we have concerns that phrases such as,

“throughout the period of its keeping or use”,

are ambiguous. For example, it could be read to mean that an embryo must predominantly be human for the entire period it is kept in order to be regulated by the HFEA. Clearly we want to ensure that any embryo that is predominantly human in its genetic make-up is regulated, however short the period that human DNA predominates.

We believe that the principle behind the amendment is correct, but we cannot accept the wording as it stands. We also want to maintain the regulation-making power to extend the list of entities, which the amendment to Clause 4 removes. It is important to ensure that we can bring within the HFEA remit anything that we should need to. As we all know, this is a fast-moving field and we should be secure in the knowledge that we can amend the list should the need arise. We also believe that it would be best to give more time to the scientific community for it to reassure us that this approach does not give rise to any practical difficulties.

In conclusion, we are grateful to the noble and learned Lord, Lord Mackay, and are content with the principles of predominant DNA that his amendment is intended to achieve, although we cannot accept it in quite the way it is drafted. We will give very serious consideration to bringing forward a government amendment in the other place. I invite the noble and learned Lord to withdraw the amendment.

My Lords, I am extremely willing to withdraw the amendment on the understanding that the Minister has expressed, and I am very grateful to him for what he said. It is in all our interest that the definition should be as self-explanatory and otherwise satisfactory as possible. I am sure that the Government will ultimately achieve that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Prisons: Woodhill

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

“With permission, Mr Speaker, I should like to make a Statement.

“As the House will be aware, there appeared in yesterday’s Sunday Times allegations that conversations between my honourable friend for Tooting and a constituent of his, Mr Barbar Ahmed, detained in prison on an extradition warrant, had been subject to covert recording when my honourable friend visited Mr Ahmed on two occasions, in 2005 and 2006, at Her Majesty’s Prison Woodhill.

“I was made aware of the burden of these allegations on Saturday afternoon. My right honourable friend the Home Secretary and I discussed the matter and we agreed that an immediate inquiry should be established. In a statement to the Sunday Times issued on my behalf early on Saturday evening I announced this, and expressed my concerns about the allegations, if true.

“It may assist the House if I now give some detail of the differing ways in which the statutory authorisation regimes for intercept and for intrusive surveillance operate.

“Just before I do so, let me underline, from my experience as a Minister directly involved in these matters over many years, that no authorisations are granted unless by law they are necessary for the detection or prevention of crime, or the protection of national security, or for related matters, are proportionate, and that the information concerned cannot be obtained by other means.

“Any authorisation for the interception of telephone calls and other public telecommunications requires a warrant personally signed by the relevant Secretary of State—usually the Home Secretary in respect of the police, Security Service and other domestic law enforcement agencies; and the Foreign Secretary in respect of Secret Intelligence Service and GCHQ. Such a Secretary of State warrant is also required for surveillance operations—including eavesdropping—by the three intelligence agencies. The telecommunications regime is overseen by the Interception of Communications Commissioner, normally a recently retired member of the senior judiciary, currently Sir Paul Kennedy. This is laid down in the Regulation of Investigatory Powers Act 2000. Surveillance under this regime is overseen by the Intelligence Services Commissioner under the Intelligence Services Act 1994.

“Under the 2000 Act, the regime in respect of intrusive surveillance operations by the police and other domestic law enforcement agencies is different. Under these provisions, which originated with the 1997 Police Act, passed in the closing months of the previous Administration, with our support, there is a hierarchy of approvals depending on the nature of the surveillance concerned. In the case of eavesdropping operations, authorisation is required of a chief officer of police or officer of equivalent rank in the Metropolitan Police Service. This regime is supervised by the Chief Surveillance Commissioner, currently Sir Christopher Rose, formerly a senior judge of the Court of Appeal.

“Ministers play no part in these authorisations. Where any operation involves the use of HM Prison Service premises, neither the service, nor the Minister concerned, are asked for any additional authorisation for the operation. What the service is asked for, on the basis of a brief summary, is permission to conduct the operation and that judgment, by the service, is based on whether any order or control issues arise, and not on the merit of the authorisation itself.

“The Sunday Times story related to claims in respect of an alleged operation sought by and authorised by the police. It follows that this matter falls within the regime supervised by the chief surveillance commissioner. I can now announce to the House that with the agreement of my right honourable friend, the Home Secretary, the Chief Surveillance Commissioner, Sir Christopher Rose, has agreed to conduct an inquiry with the following terms of reference. To investigate the circumstances relating to the visits to Barbar Ahmed at HM Prison Woodhill, by Sadiq Khan MP, in May 2005 and June 2006, to establish whether the visits were subject to any form of surveillance and, if so, by whose authority, and with whose knowledge, and to report his findings to the Prime Minister, the Home Secretary and the Justice Secretary.

“This inquiry will be fact-finding. Sir Christopher has told me that his aim is to conduct the inquiry as quickly as possible, but consistent with the thoroughness required. He will do his best to complete his task within two weeks. A further Statement will be made to the House once we have received and have been able to consider Sir Christopher’s findings.

“It may also assist the House if I mention two other matters. The first is the Wilson doctrine. This, as the House knows, was originally promulgated by the then Prime Minister, the late Harold Wilson, in 1966. He said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that, if there were a development which required a change of policy, he would, at a moment that was compatible with the security of the country, make a statement about it.

“The terms of this Statement have been endorsed by successive Prime Ministers, including Tony Blair in a Written Ministerial Statement to this House on 30 March 2006. In a Written Answer in September 2007, my right honourable friend the Prime Minister said:

“The Wilson doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant”.—[Official Report, Commons, 12/9/07; col. WA 2103.]

“Secondly, the question has been raised of interception or surveillance of conversations with any person, whether a suspect, a convicted criminal or otherwise, by their legal adviser. These are all subject to explicit safeguards which generally prohibit such interception or surveillance”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for coming to the House rapidly and repeating the Statement made in the other place. Yesterday, the Home Secretary telephoned the shadow Home Secretary to say that the letter that he had sent to No. 10, could not be found. We accept that.

The Minister confirmed that the Wilson doctrine remains in force and that there have been no changes in process or practice, given the duty under the doctrine to notify the House of any such changes. Will the Minister confirm that the doctrine applies equally to your Lordships’ House?

He also confirmed that this alleged action was in breach of the spirit of the doctrine and announced an inquiry, which we welcome. On this side of the House, we also welcome the fact that the inquiry has come and will be conducted speedily. We also hope that it will be thorough.

We feel that, even now, it should be possible for the Minister to be able to give an answer to the following question. Who, under the rules that he described, authorised this action? If it was a policeman, at what rank was it authorised? Was the Chief Surveillance Commissioner aware?

More generally, no doubt the inquiry will reveal in what other ways the authorities failed to follow proper procedure and whether any breaches of the applicable protocol were accidental or a deliberate and premeditated short-circuiting of the system. In particular, the House will wish to know whether it was known in advance that a Member of Parliament would be bugged and, if so, whether an explicit decision was taken not to switch off the recording equipment. It will also wish to know whether any higher authorisation was sought for any such decision, if such a decision was taken. The Government will need to establish whether this is an isolated case or whether the MP concerned has been bugged on other occasions, and whether other MPs, or indeed Members of your Lordships’ House, have been bugged in the past. It will be necessary to have a thorough inquiry, evidently conducted by a senior judge, to establish the wider facts.

An important substantive issue arises from this. Everyone in Parliament understands and accepts the virtually absolute nature of the privileged relationship governing communications between a Member of Parliament and a constituent. The question arises: what would happen if a Member of Parliament were to become implicated in actions or communications relating to a terrorist plot? Frankly, and perhaps unsurprisingly, the Wilson doctrine is silent on this. We on this side of the House feel that the inquiry might usefully consider these issues.

This case has exposed two rather serious risks. First, the Executive can apparently ride roughshod over the relationship between an MP and his constituents—a relationship that is the basis of parliamentary democracy. Secondly, the necessary authorisations for secret anti-terrorist activity are apparently being ignored. The Government need to reassure this House on these two points, among others, and to do so quickly.

My Lords, this is a Statement of some concern. The manner in which it has come out also causes concern. We have had a leak, clearly instigated by a whistleblower; the postal service, Royal Mail, is implicated in letters going missing; and, after some pressure since yesterday, we have now had this Statement in the House. It is a very brief Statement that is as sketchy as it could be to be any kind of meaningful summary of what has happened. It says very little and tells us very little. The noble Baroness, Lady Neville-Jones, has asked a few questions, and I wonder whether I might add to some of them.

The inquiry is of course very welcome, and important things will come to light as we see the results. There are a few specific points to make. We understand that the security agencies asked for a review of the Wilson doctrine. Is that correct? If they did, what has been the Government’s response to the request? If the Government do not wish to disclose that at this point, will they ensure that we get an idea through the inquiry of how applicable they think the doctrine is in the world we now live in? We also understand that the doctrine does not apply to e-mails. Is that correct, or are e-mail communications now subject to it? If not, are they likely to be in the future?

My final concern is about the impact on and the damage done to the subject of the intercept. Although Barbar Ahmed might rightly have been of concern to the security services, you would not expect the finger to be pointed at a Muslim MP seeing a constituent. Will the inquiry look at whether the authorisation, if granted legally and lawfully, was specific to the particular Member of Parliament or to the particular person held in custody?

Finally, can the Minister tell us whether he is holding any meetings with members of Barbar Ahmed’s family and others as a matter of urgency to reassure them as to the agenda that was in place here?

My Lords, I thank the noble Baronesses, Lady Neville-Jones and Lady Falkner, for their welcome to the inquiry referred to in the Statement. On the question of the letter from Mr David Davis, I reiterate that No. 10 has no record of its being received. I was asked whether the Wilson doctrine applies to the House of Lords, to which I can answer that yes, it does. Indeed, I understand that Lord Balfour of Inchyre, as Lord Privy Seal, made a Statement on 22 November 1966 stating that exceptionally, a Statement made by the Prime Minister in relation to the Wilson doctrine made it clear that it would apply to the House of Lords.

The noble Baroness, Lady Neville-Jones, asked about who authorised this, what rank were they, who knew in advance and whether there was a higher authorisation. I am not going to answer any of those questions because it is best left to the review I have announced. I thought that the noble Baroness, Lady Falkner, was a little unfair. My right honourable friend the Lord Chancellor dealt with this matter the moment he heard about it by announcing that there would be a review. We have come to Parliament on the first day possible to make a Statement, and of course we will continue to engage with Parliament. My right honourable friend has already said that at the outcome of the review, a further Statement to Parliament will be made.

On the Wilson doctrine, I specified clearly that it applies to all forms of interception that are subject to authorisation by the Secretary of State warrant. In response to the more general question the noble Baroness raised, it is better to see first the outcome of the inquiry. The Government can then consider what further action might need to be taken. The best thing is to have what it is hoped will be a very short inquiry which will answer some of the specific questions that have been raised. Then, in the light of that inquiry, we can consider whether any further action needs to be taken.

My Lords, I support the Minister in what he has said about the inquiry, which I am sure is a proper and appropriate course to take. Perhaps I may ask for the Minister’s assistance in this regard: in the 1960s I was a Minister in the Home Office, dealing with police matters from day to day. My understanding of the Wilson undertaking was that the protection given to a Member of either House of Parliament would be as close as possible to absolute terms, so as to make it an almost unique case if it was used exceptionally. Can I be given an assurance that that is still the case? Furthermore, whereas it seems that the protection is given to a Member of Parliament for a communication with a constituent, who, in such a situation, should the respondent be in relation to a Member of this House?

My Lords, the noble Lord makes a very good point in his second question. Of course, nothing is laid down in statute or any other guidance, so far as we are aware, but I suspect that like most things in your Lordships’ House, you know it if you see it. I do not think that I can say any more than that.

On his first point, that, too, is my understanding. The Wilson doctrine seems to have served this country and the Houses of Parliament well during the more than 40 years it has now been in operation.

My Lords, subject to the rare exception which my noble friend has outlined, does he recognise that as a solicitor, an MP and a Member of this House, I would have been enormously concerned if any discussions with constituents or potential witnesses in prison had been bugged. That would undoubtedly have prejudiced any subsequent proceedings, which is a vital point that has not been mentioned. Does my noble friend agree that any breach which happens forthwith, notwithstanding any inquiry, must be dealt with very rigorously?

Yes, I do, my Lords. The importance of holding an inquiry into the specific events that are alleged to have taken place is that it will enable us to inform on other matters. It is best to await the outcome of this inquiry. I agree with the general philosophy enunciated by my noble friend.

My Lords, having had the experience of appearing in a jurisdiction where the only safe place to discuss a case with instructing solicitors was in the middle of a swimming pool, I hope we will not get into such a situation here. The last paragraph of the Statement refers to conversations with a legal adviser and states that they are,

“subject to explicit safeguards which generally prohibit such interception”.

What does “generally” mean—“always” or “more often than not”? If the latter, on what occasions is the surveillance of the discussions between a legal adviser and his client in prison allowed. If there are exceptions, it will inhibit the proper operation of legal professional privilege throughout this country.

My Lords, I am going to duck the question to a certain extent. I will write to the noble Lord with a more detailed explanation. On his general point, I agree that this is an important guarantor of rights in our country and it is very important that it is maintained. That is why it is contained in the Statement.

My Lords, I apologise for missing the Minister’s opening words. I presume that there is no question whatever of conversations between counsel and prisoners being bugged.

My Lords, that is the point raised by the noble Lord, Lord Thomas of Gresford. The Statement makes it clear—I shall say it again—that any question of the interception or surveillance of the conversations of any person with their legal adviser is subject to explicit safeguards, which generally prohibit such interception or surveillance. I shall outline the safeguards and put a copy in the Library so that all noble Lords may consider them.

My Lords, I support the Statement made by my noble friend. The inquiry is incredibly sensible and I can think of no one better than Sir Christopher Rose to conduct it. He is a man of great independence. I have two questions. Can I assume that the inquiry will cover the current standing arrangements for the enforcement of the Wilson doctrine? Can I further assume that the Wilson doctrine will apply to conversations between Members of Parliament and their constituents in prison pending the result of the Christopher Rose inquiry?

My Lords, the answer to the second point is yes. As to my noble and learned friend’s specific question, I would rather allow the inquiry to go ahead and study the outcome. We can then see whether any wider implications will need to be considered.

My Lords, Mr Ahmed was being detained pending extradition. Is there any way that US legislation, such as the Patriot Act, could have had any implication for the Wilson doctrine?

My Lords, I noted that in reply to the noble Baroness, Lady Neville-Jones, the Minister said that he did not wish to go into those matters at the moment. It was not clear to me—and it may not have been clear to the House—whether that meant he knew what the answers were and would prefer to wait, or whether he did not know what the answers were.

My Lords, that is the sort of question that your Lordships’ House enjoys. Allegations arose on Saturday. We have asked for the inquiry to be undertaken. It is much better that we see the outcome of that inquiry, and we will then report to the House. The noble Lord should not read too much into my reply.

My Lords, as a former senior police officer I support the Government’s line on this: immediately the concerns were known, an inquiry was instituted. It is essential that that is done thoroughly and swiftly, and I am glad to know that we may have the answer within 14 days. I cannot imagine how exceptional the circumstances must have been to allow this to happen.

I know the senior officer involved in the anti-terrorist enquiries, an assistant commissioner at New Scotland Yard and a man of probity, intelligence and absolute integrity. It is a mystery to me how this happened, and I look forward to the answer to the inquiry as much as any other Member of the House. As a former senior police officer, I support the fact that the Government have instituted this inquiry immediately.

Will the inquiry also embrace the question of how the Sunday Times got this information? Was it bugging someone’s conversation?

My Lords, that is a very good question. I have read out the inquiry’s terms of reference; it will investigate the circumstances relating to the visits to Barbar Ahmed at HMP Woodhill by Sadiq Khan in May 2005 and June 2006, establish whether the visits were subject to any form of surveillance—and, if so, by whose authority and with whose knowledge—and report those findings. As I said, Sir Christopher will do his best to complete that task within two weeks and then a further Statement will be made. I do not think I can add anything more to that.

Human Fertilisation and Embryology Bill [HL]

Proceedings after Third Reading resumed.

Clause 11 [Activities that may be licensed]:

5: Clause 11, page 8, line 21, after “research)” insert “—


The noble Lord said: My Lords, the amendments in this group were tabled by my noble friend Lord Patel, who unfortunately is unable to be here today as he is on a professional visit overseas. They were tabled on Report, but it is important to say a few words before deciding how to proceed.

Research into deriving embryonic stem cell lines for treatment purposes is proceeding, and UK-based researchers are widely regarded as among the leaders in the field. There have been recent reports, for instance, of embryonic stem cells having a great potential to treat acute macular degeneration, and researchers from Moorfields hospital in London and Sheffield University are now developing embryonic stem cells in a GMP-compliant facility—meaning good manufacturing practice—to take that work to the next stage of clinical testing. The Medical Research Council, with the Department of Health, has invested £1.2 million to create laboratory facilities in which embryonic stem cells can be developed to appropriate standards for clinical application in humans. The MRC plans further investment in the development of tissue-typed embryonic stem cell lines.

When we debated in this House in 2001 the regulations amending the Human Fertilisation and Embryology Act 1990, many of us, including myself, took the view that the purpose of those regulations was to amend the Act in order to allow stem cells to be used for the treatment of serious human disease. We were therefore surprised when, either in Committee or on Report, the noble Baroness, Lady Royall, suggested that the use of such cells in treatment was not allowed under the Act and that it might even require new primary legislation. However, I am grateful to the noble Lord, Lord Darzi, for the letter he sent to many of us last week in which it would appear that that interpretation may not have been entirely correct. The Government’s position has clearly changed. There appears now to be common agreement between the Government, my noble friend Lord Patel and I that the therapeutic and research use of embryo-derived stem cells in clinical trials would be regulated by the MHRA in consultation with the Human Tissue Authority and will not—and should not—be regulated by the HFEA. Indeed, the framework of EU directives and the like for that regulation is already in place.

Neither I, nor the scientists, nor the Government are arguing that the HFEA will be involved in regulation beyond the use of the embryo to derive the cell lines. For those of us who wish to see the therapeutic use of this technology without the need for further legislation—that now appears to be the Government’s view—the question is whether the terms of the original licence to create or use embryos, which can only be a research licence as the Bill stands, are adequate to enable us to say, with the certainty required by research scientists, their funders and investors, that therapeutic use will be permitted. That assurance requires more than an assertion of ministerial hope or parliamentary belief—it requires legal certainty.

I therefore ask the Minister to give a clear assurance that stem cell lines derived from embryos under a research licence can ultimately be used for treatment purposes once all stages of clinical research are completed. I ask also for a commitment that the translation of research into treatment will not be delayed by the need for further legislation and that a pathway for any such legislation has been agreed. I beg to move.

My Lords, I support the noble Lord, Lord Walton. The idea that stem cells should eventually be used for treating diseases is a major selling point of this Bill for the general public. We must have some clarification on that. In Committee, I understood that primary legislation was needed to achieve that purpose. In the letter from the Department of Health I think we are now being told something different, but I confess to not really understanding the letter. Therefore, I hope the Minister will now clarify the position for the benefit of all of us.

My Lords, who would determine whether embryos would be used in therapies rather than just in research, as currently? What expertise exists within the Human Fertilisation and Embryology Authority to determine issues surrounding the kinds of diseases that the noble Lord, Lord Walton of Detchant, has mentioned? Furthermore, what assessment has been made of safety hazards and risks that there might be because, where foetal cells have been used in the United States for the treatment of sufferers of Parkinson’s, those treatments had to be withdrawn owing to the irremediable damage that they did?

My Lords, I am grateful to the noble Lord, Lord Walton, and the noble Lord, Lord Patel—who is not in his place, and I quite understand why—for the further discussions that we have had on this issue after previous debates.

The noble Lord referred to the letter from my noble friend Lord Darzi, which covered a number of the issues raised during the passage of the Bill, including a considerable contribution on this subject, and copies have been placed in the Library. I am happy to repeat the salient points for all noble Lords present.

The Government have consistently supported the use of cells derived from embryos for the treatment of human disease and medical conditions, and have therefore given the issue very serious consideration. On the basis of advice and discussions we have had following Report, the Government are of the view that the licensing framework which would be in place following the introduction of the Bill would allow the derivation of embryonic stem cells. Furthermore, it would allow the development of those cells into a therapeutic product without the need for further amendment. Any embryonic stem cell line intended for therapeutic use will need to be subjected to considerable research activity, including rigorous safety assessment, before entering into preclinical and clinical studies. As each cell used would be different, significant investigation would be required in each case prior to, and during, preclinical and clinical study.

Regulatory oversight by the HFEA finishes once a stem cell line is derived. This means that once embryonic stem cell lines have been developed, the HFEA regulatory framework under which the embryo was produced is not relevant to any further use of that cell line, whether for further research or for therapy.

There are a number of ethical and safety issues regarding the use of stem cells in patients that go wider than the regulatory remit of the HFEA. They include the regulation of clinical trials using stem cells, of the widespread therapeutic use of stem cells and of the standards against which the use of such stem cells would be regulated.

These are questions which a working group of regulators comprising the HFEA, the Human Tissue Authority and the Medicines and Healthcare Products Regulatory Agency are considering. This work will inform the research community about the steps to be taken to enable cell-based therapies to be introduced into clinical practice. The issue will be informed by the work of the stem cell bank steering committee, chaired by the noble Lord, Lord Patel, and the Medical Research Council.

The Government remain committed to developing an enabling regulatory system as part of the 10-year UK stem cell initiative. We look forward to engaging with all relevant stakeholders to ensure that the overall regulatory framework is effective and proportionate at all stages of the research pathway from laboratory to clinic. We are of the firm belief that there is no legal impediment to current research being developed into clinical application. As such, I hope that the noble Lord will feel able to withdraw his amendment.

My Lords, I was greatly reassured by the Minister’s statement, because it covered the main points with which the scientists involved in this research are concerned. In consequence, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 14 [Conditions of licences for treatment]:

7: Clause 14, page 9, line 34, at end insert—

“(6BA) In the case of treatment services falling within paragraph 1 of Schedule 3ZA (use of gametes of a person not receiving those services) or paragraph 3 of that Schedule (use of embryo taken from a woman not receiving those services), the information provided by virtue of subsection (6) or (6A) must include such information as is proper about—

(a) the importance of informing any resulting child at an early age that the child results from the gametes of a person who is not a parent of the child, and(b) suitable methods of informing such a child of that fact.”

The noble Baroness said: My Lords, much of our discussion about the Bill has related to the importance of donor-conceived people being made aware of that fact. It has been expressed by, among others, the noble Baronesses, Lady Warnock and Lady Finlay, that this should at least be provided for in the code of practice, but, more ideally, also in the Bill.

The Government recognise the importance of ensuring that prospective parents understand the importance of telling a child at an early age that they were donor-conceived. A child who grows up with this knowledge will be better informed and is likely to have a better family relationship. They would receive the information from their parents in the most sensitive, constructive and least distressing way.

It is the Government’s view that this is best achieved by education rather than enforcement. The Donor Conception Network has a planned programme of work, supported by the Department of Health, to promote the importance of letting donor-conceived children know at an early age that they are donor-conceived. The work will include providing, for patients who are to have treatment with donated sperm, eggs or embryos, guidance on the process of donor conception, its implications and its particular responsibilities. The aim is to prepare them for being the parents of a donor-conceived child. The work will also involve a “telling and talking” project that aims to encourage parents who have donor-conceived children to tell them, from a young age, about their origins. The work will be piloted and evaluated to assess the best way of communicating with parents and prospective parents, and to give them an opportunity to feed back information.

Encouraging openness in this way is the best way forward. The 1990 Act requires counselling to be available, and for such relevant information as is proper to be provided by all licensed treatment clinics. It is a condition of all licences that a woman shall not be provided with treatment services unless she and any person who is to be treated together with her have been given a suitable opportunity to receive proper counselling and relevant information. We introduced an amendment on Report that went some way to address the issue of donor-conceived children finding out about their origins, but following further discussions and amendments tabled by the noble Earl, Lord Howe, and the noble Lord, Lord Jenkin, we agreed to come back with something more specific.

Amendment No. 7 addresses concerns expressed in relation to the importance of parents discussing with their donor-conceived children, from an early age, details of their conception. Amendments Nos. 8 and 16 have two effects. The first strengthens the Bill with respect to the provision of counselling and information, in addition to requiring that all patients be offered counselling and provided with information. It also requires that the HFEA produces, in its code of practice, guidance for the clinics about doing so. In addition, Amendment No. 16 introduces a provision which ensures that it is a condition of all licences that people being treated using donor gametes, or embryos taken from a woman who is not being treated, must be provided with information about the importance of telling their child that they were donor conceived, as well as information about the best way to do this. The combined effect of these amendments will mean that clinics are obliged to provide patients with information about the importance of talking to children about their donor conception, and that the code of practice should provide details of what information should be provided, as well as how the offer of counselling should be made. I beg to move.

My Lords, I thank the Minister for listening so carefully to the concerns expressed at earlier stages of this Bill and for these amendments, which go a long way towards meeting those concerns. I am sure I speak for the noble Baroness, Lady Finlay of Llandaff, who is, unfortunately, unable to be present today, in expressing that gratitude.

My Lords, as the mover, at Report stage, of amendments both to make it a condition of the licence, and to see that it went into the guidance, I also express my gratitude to the Minister for having met us so fully on this. This is a valuable addition. To have this in the Bill as a licence condition is a very important step forward. Can we assume that there will be a comparable paragraph in the guidance?

My Lords, I add my thanks to the Minister and associate my noble friend Lady Finlay of Llandaff with these thanks. We really are extremely grateful.

My Lords, I support the amendment, but would like to ask one question of the Minister. The amendment speaks of an early age, and the Minister used the expression “a young age.” That could mean a range of ages. While I am entirely supportive of the amendment, I am one of those who share the anxiety that children are denied their childhood these days by sometimes being treated as adults when they are too young. There is a very delicate balance here in all sorts of areas of life. This is clearly one of them. Will the Minister indicate whether the guidance will say at what sort of age it is thought appropriate to raise this? I would be anxious that there was not always a downward pressure to raise these matters with children before they are emotionally able to cope with the information.

My Lords, I entirely agree that children must be allowed to have their childhood. That is where the important work of the Donor Conception Network must be taken into consideration. It is working with families now, undertaking a pilot. I do not want to specify an age today at the Dispatch Box but we will be informed by the important work that the Donor Conception Network is carrying out. I can assure the right reverend Prelate that we would not want to do anything that would adversely affect a child’s childhood. In answer to the noble Lord, Lord Jenkin, yes, it will be included in the guidance.

My Lords, the noble Baroness stood up so quickly that I did not have a chance to stand up. I should like to make two brief points. First, I say to the right reverend Prelate that I hope that children are brought up in an atmosphere where they know from a very early age. We know from all the work in adoption that children fare much better when they know about their situation when they are very young indeed. It does not then come as a shock later on. Children who suddenly discover, at quite a young age, that they are adopted, find that extremely difficult to deal with. I remember talking to a child of four, when I was on Childline, about what “adopted” meant because she had just found out and was in a slight state of shock. She was being helped by an older child to call Childline to talk about this.

I did not have the opportunity to make my second point, but having spoken to a number of donor families, the thing that really concerns them is not being ordinary families. I understand that and we want them to be ordinary families as much as they can in bringing up their children. We want to get to the most resistant families who do not want to engage in telling the children at all about their backgrounds. That is why I shall support the later amendment of the noble Lord, Lord Jenkin, on research into how this process has worked through.

In the guidance, has the noble Baroness thought about the kind of materials that might be available to help the various authorities in knowing how to tell children, because that can be quite daunting? We have learnt from adoption that materials alongside counselling can be helpful because you have something in your hand that you can take away.

My Lords, I should like the Minister to comment on the difference between ordinary cases of donor conception covered by the amendment and the placing on the register at birth of facts that inevitably point to donor conception, thus distinguishing children affected, for example, by what is now Clause 46 from all other children who are donor conceived.

My Lords, perhaps I may welcome these amendments and ask two questions. First, can she respond to a point raised at an earlier stage by the noble Earl, Lord Howe, about how our guidance and laws relate to those in other European Union countries? I am thinking especially of Spain where a number of people now go to receive fertility treatment. Are we thinking of ways of dovetailing our laws with theirs, because in Spain, for instance, anonymity pertains for donors, unlike in the United Kingdom?

As well as looking at overall compliance within the European Union, can the noble Baroness say a word about the long-term effects on donor-conceived children? That issue was raised by the noble Baroness, Lady Howarth of Breckland, a few moments ago and in our earlier debates. Do the Government intend to keep it under review as the years proceed? On Report, the noble Lord, Lord Jenkin of Roding, made an attempt for us regularly to return to this question. If that cannot be done in statute, can the Government at least provide an assurance that we will keep this under review?

My Lords, the notion of the noble Baroness, Lady Howarth, on making materials available for families is very good. Of course adoption and donor conception are very different, but we can learn from what we have done in the sphere of adoption. We will certainly take that on board. I note the point made by the noble and learned Lord, Lord Mackay, but our intention is that all children have a right to know whether they were donor conceived. The difference between us is on the way that this is done, but it is our intention to ensure that all children are availed of that right.

On the question on other EU countries, it is important that we work to ensure that our systems in this country are as like those of other European Countries as is possible, so that people can travel freely and widely, and because there are so many couples. One partner may come from France and another from Greece; another partner might come from the UK and another from Denmark. So we have to take into consideration what is happening in other European Countries.

The long-term effects on donor-conceived children are of course of the utmost importance and we will certainly keep this issue under review.

On Question, amendment agreed to.

Clause 23 [Code of practice]:

8: Clause 23, page 19, line 3, at end insert—

“( ) After that subsection insert—

“(2A) The code shall also give guidance about—

(a) the giving of a suitable opportunity to receive proper counselling, and(b) the provision of such relevant information as is proper,in accordance with any condition that is by virtue of section 13(6) or (6A) a condition of a licence under paragraph 1 of Schedule 2.””

On Question, amendment agreed to.

Clause 24 [Register of information]:

9: Clause 24, page 20, line 20, at end insert “if”

The noble Baroness said: My Lords, I shall speak also to the other government amendments grouped with it. These amendments have become apparent only since Report stage and correct minor drafting points.

Amendments Nos. 9 to 11 amend the wording of subsection (3) of new Section 31ZA to make it consistent with the wording in Section 31(3) of the 1990 Act and with new Section 31ZB(3) in the Bill.

Amendments Nos. 12 to 15 correct some inconsistencies in the wording of subsection (4) of new Section 31ZA and new Section 31ZB(5). Amendment No. 18 corrects a further inconsistency in the wording of Clause 61(3) when compared with Clause 64(7). I beg to move.

My Lords, can the noble Baroness explain what “saving” means in Amendment No. 18? I am not sure that I understand.

My Lords, that is an excellent question and unless I get speedy assistance from the Box, I shall have to reply to the noble Earl in writing. If I keep going long enough, perhaps I will get an answer. I take this opportunity to say that the Bill team have been excellent and I am very grateful for all the work that they have done. I am extremely sorry. I will have to respond to the noble Earl in writing and I will copy the information to all noble Lords present.

On Question, amendment agreed to.

10: Clause 24, page 20, line 21, leave out “if”

11: Clause 24, page 20, line 23, leave out “if”

12: Clause 24, page 20, line 27, leave out “gave” and insert “gives”

13: Clause 24, page 20, line 28, leave out from “(1),” to “give” in line 29 and insert “regulations cannot require the Authority to”

14: Clause 24, page 20, line 42, leave out from “donor” to “or” in line 44

15: Clause 24, page 21, line 32, leave out “gave” and insert “gives”

On Question, amendments agreed to.

Clause 26 [Mitochondrial donation]:

16: Clause 26, page 30, line 31, at end insert—

“( ) section 13(6BA) (information whose provision to prospective parents is required by licence condition),”

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Clause 61 [Orders and regulations: general provisions]:

18: Clause 61, page 50, line 29, after “transitional,” insert “saving,”

On Question, amendment agreed to.

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

[Amendments Nos. 19 and 20 not moved.]

21: Schedule 2, page 58, leave out lines 11 to 13 and insert—

“(6) No licence under this paragraph is to be granted unless the Authority is satisfied that—

(a) any proposed use of embryos or human admixed embryos is necessary for the purposes of the research;(b) there is cogent evidence, which must include published, peer-reviewed scientific data, that—(i) the research proposed on human or human admixed embryos is likely to achieve its specified purposes; and(ii) it is not reasonably practicable to achieve the specified purposes of the research without using human embryos or human admixed embryos.”

The noble Baroness said: My Lords, the House will recall that on Report, I mentioned that I would bring back the so-called Hunt test amendment, having changed it in the light of comments made by the noble and learned Lord, Lord Mackay of Clashfern, concerning one subsection that we agreed was not appropriate. So I have brought it back without the subsection that dealt with animal testing. The amendment before the House is straightforward and clear.

I will be brief and begin by saying that the potential of adult stem cells is now widely recognised in the scientific field. I will mention three quick examples, all very recent. Professor Thomson of Wisconsin, a leading figure in the field, says of retroprogrammed adult stem cells:

“By any means we test them, they are the same as embryonic stem cells”.

Rudolf Jaenisch, head of the Whitehead Institute for Biomedical Research in the United States, says:

“This demonstrates that IPS cells have the same potential for therapy as embryonic stem cells, without the ethical and practical issues raised in creating embryonic stem cells”.

Sir Martin Evans says:

“This will be the long-term solution”.

We have to ask why it is important that wherever possible adult stem cells should be chosen instead of embryonic stem cells. I underline the phrase “wherever possible” and will come back to it in a moment. One reason, mentioned in our debates by the noble Lord, Lord Winston, is the shortage of human eggs, which is now serious. Professor Wilmut says:

“Cloning is still too wasteful of precious human eggs, which are in great demand for fertility treatments, to consider for creating embryonic stem cells”.

In short, embryonic stem cells, as far as possible, should not be used because they are much more important for other purposes. One significant thing about this that I mentioned at Report stage last week concerns the market. No market is permitted in the United Kingdom, but there is a clear market in the United States, and the price of human eggs for fertilisation purposes has gone up very sharply. There is a real danger in introducing the market into a field where people are ready to pay for something that they desperately desire and need. Therefore, as far as possible, steps that one can take to reduce the market pressure should certainly be taken.

Scientists increasingly argue that embryonic stem cell research may be needed as an assessment tool—as a reference point, if you like. That has been argued by a number of people, including Professor Wilmut and Professor Thomson, who have said that they believe very strongly that the medium and long-term solution lies in adult and not embryonic stem cells. However, I recognise that that may not be the case yet and that there may be a demand for embryonic stem cells to be used as a reference point or test of the usefulness of adult stem cells.

Members of the House may have read a very interesting article in our distinguished journal Science on 21 December 2007. It is becoming increasingly clear that there is a growing consensus among many scientists that we are now looking at a much more promising road along which to advance—that of retro-programming adult stem cells to the point where they become plenipotentiary than pursuing what may well be an expensive and, indeed, ethically objectionable route of embryonic stem cells. In that context, I again quote the spiky words of Professor Thomson:

“A decade from now this”—

by which he means embryonic stem cell research—

“will be seen as a funny historical footnote”.

I draw the House’s attention to a very significant fact. Today, controls over the use of animal testing are much stricter in this country than controls over the use of embryonic stem cells, as distinct from adult stem cells, as a tool for research. The animal research, which has been largely relied on by the scientific establishment over recent years, is governed by the Animals (Scientific Procedures) Act 1986. Under that Act, the Home Office determines whether research on animals is allowed and the test is very straightforward: it is whether any alternative procedure would be equally or more successful than the use of animals. Over the years under this Act, the Home Office has rejected a number of, although not many, research proposals. Last year, about 3.5 per cent of research proposals involving animal testing were rejected by the Home Office on the grounds that there were alternatives which would be more than adequate for the purpose. In the case of embryonic stem cells, only on one occasion has the HFEA rejected a proposal for research, and subsequently that proposal was slightly amended and then accepted. That is the record of the HFEA: it does not appear to be too ready to reject proposals for research on the grounds that there are alternatives to embryonic stem cell research.

I made it clear that in my view the likelihood is that adult stem cell research will increasingly overtake embryonic stem cell research, partly because it is not as expensive and partly because the genetically similar cells created by the use of stem cells from the same adult who is being treated completely removes the danger of an immune reaction. Invariably, that is not true of embryonic stem cell research. I outline once again that far more therapies have been created as a result of the burgeoning field of adult stem cell research than have been created from the not very burgeoning field of embryonic stem cell research. With the latter, arguably there have been about two therapies where there truly has been hope for the future, whereas with adult stem cells there have been many such therapies, including a recent breakthrough in the use of neural cells to treat, among other things, Alzheimer’s disease.

I emphasise that much of the rest of the scientific world is now moving ahead clearly and strongly in the field of adult stem cell research. When it discussed this matter earlier, the House did not have before it the astonishing commitment now being made by the Government and research councils of Japan. Not only have they now decided to set up a major research centre at the University of Kyoto where Professor Yamanaka works but, more staggering still, the Government of Japan and their medical research establishments have committed themselves to spending $10 billion on the advance of adult stem cell research. In other words, they now believe that this is clearly the best way forward. I fear that our attitude of on the whole giving preference over the years to embryonic stem cell research as the way forward could mean that in the United Kingdom we are not sufficiently responsive to and aware of the huge potential of adult stem cell research. We consequently concentrate on a field that we are used to but a field that recent breakthroughs suggest will not move anything like as fast as will the use of adult stem cells.

We are proposing in this amendment as close a match as one can get to the pledge made to the House in 2001 by one of the most respected Ministers in this House, the noble Lord, Lord Hunt of Kings Heath. Let me remind the House of what he said in the debate on the HFEA:

“The 1990 Act already provides the answer to the question of what happens if and when research into adult cells overtakes research using embryos: embryonic research would have to stop because the use of embryos would no longer be necessary for that research”.—[Official Report, 22/1/01; col. 120.]

He also said that the HFEA,

“must satisfy itself that there is no other way of doing the research, avoiding embryo use”.—[Official Report, Commons, 19/12/00; col. 214.]

The noble and right reverend Lord, Lord Harries of Pentregarth, said that in his view the HFEA already largely abides by that consideration and does not choose embryonic stem cell research if adult stem cell research would be at least as efficacious or more so. Putting this in the Bill would a be great reassurance to the many in our society who are concerned and troubled about the use of embryonic stem cell research and the many more who are waiting for fertility treatment because there are no human eggs available. If the United Kingdom wishes to be in the vanguard of this movement, making it clear that where it is feasible—or better—to use adult stem cells, the HFEA is committed to doing so, far from being a blockage to advanced research, would actually encourage it. That would do so because it would show that the United Kingdom was moving with the times, and the times are extremely exciting for adult stem cell research and should be built upon. Having this in the Bill would also, incidentally, fully bear out the pledge made by the noble Lord, Lord Hunt of Kings Heath, in 2001 before any of us knew the potential of adult stem cells. I beg to move.

My Lords, I am not sure whether technically I can do this. I want to ask a question of the noble Baroness before she sits down, but maybe she has already sat down. My question is not about whether one should support one or the other. My own instinct is to support all avenues of research because you cannot predict which will be the most fruitful long term. It is simply about whether I share her understanding of the import of paragraph (b) of proposed new subsection (6) which states:

“There is cogent evidence, which must include published, peer-reviewed scientific data”.

Can the noble Baroness help me? On my reading, that would mean that you could never do research for the first time.

My Lords, I assume that it is in order for me to reply. The noble Baroness is reading into the amendment an extremely precise statement of it being related to a particular piece of research. It is not. When peer group and scientific studies show that a particular form of research is generally useful in the field in which it is being put forward, it would not fail on the basis of the proposed new subsection. It would simply require that more than assumptions are made about the prospects for adult stem cell research in that particular area. There is now such a rapid build-up of research material available that I do not believe that the objections of the noble Baroness stand.

My Lords, the noble Baroness mentioned the HFEA in general and my name in particular. She made a comparison between the number of applications turned down by the Home Office from researchers wanting to do research on animals, abiding by the Animal (Scientific Procedures) Bill, with the small number of applications turned down by the HFEA. It is important to bear in mind the fact that hundreds if not thousands of applications are made to the Home Office for work using animals. Obviously we have so far had very few applications to the HFEA for work using embryos.

Furthermore, there is an early filtering-out system, not only by the local research ethics committees in hospitals; the scientific community knows that it will get approval only if research cannot be done using any method other than embryos. The comparison made by the noble Baroness is not entirely fair. She rightly stresses the importance of therapies using adult stem cells, which are obviously much more useful for therapies, but the scientific community would say—I am sure the noble Lord, Lord Winston, will bear this out—that for fundamental research, work is needed using embryonic stem cells. Again it is slightly unfair to contrast the work being done for therapies using adult stem cells and the work that still needs to be done at a very basic level.

My Lords, I believe this was a question for me before I sat down so I shall respond to it if the noble Lord does not mind.

My Lords, the noble and right reverend Lord, Lord Harries, has been allowed to ask a question, so it would be odd if I were not permitted to respond to it.

I have, my Lords. I said that we were dealing with:

“Page 58, leave out lines 11 to 13 and insert”,

the words printed on the Marshalled List.

My Lords, with that invitation, I shall speak to an amendment that has been brought back with the deletion of a particular paragraph about animals that aroused a great deal of hostility on a previous occasion. We now have an innocent and, I hope, pleasing amendment that your Lordships will think fit to accept.

There are two extra points going for us today. First, in an earlier amendment, the principle that some things are good to have in the Bill was recognised. The big argument underlying this amendment is to get it in the Bill to reassure the public how seriously we take the development of science and the care we in this House are giving to it.

Secondly, the Minister referred to the noble and learned Lord, Lord Mackay of Clashfern, as being a benign influence on the Bill and a figure who has been watching its progress carefully. We now have an amendment that has been recommended by him. We have brought it back with the deletion of the animal bit, which I mentioned earlier. Many of the words in Amendment No. 21 come from previous legislation. Proposed new subsection (6) would go into the licensing provisions in Schedule 2. Paragraph (a) says,

“any proposed use of embryos or human admixed embryos is necessary for the purposes of the research”.

Subject to the addition of the words “human admixed embryos”, that precisely tracks the 1990 Act in Schedule 2(3)(vi).

There is cogent evidence, which the noble Baroness, Lady Williams, addressed, to answer the question raised there. The noble Lord, Lord Darzi, spoke on 15 January in favour of the importance of having peer review research proposals which could then lead on to monetary grants and support. Paragraph (b) says,

“the research proposed on human or human admixed embryos is likely to achieve its specified purposes”.

As I said on a previous occasion, this will have echoes of the Patents Act about an employee making an invention. No answer was ever made to that. It seemed a good point—one often thinks one’s own points are good—that you could recognise an invention made by an employee and award it to him rather than the employer if the circumstances were such that the invention might reasonably be expected to result in the carrying out of his—the employee’s—duties. Finally, heading (ii) says,

“it is not reasonably practicable to achieve the specified purposes of the research without using human embryos or human admixed embryos”.

The only objection I believe has been made at all to these provisions is that the authority more or less does what is set out in paragraph (b)(i) and (ii) already. Yet that does not meet the point that this is designed to give reassurance to the public.

My Lords, I have always had huge respect for the noble Baroness, Lady Williams. I have admired her speeches for many years, from when she was in the House of Commons. Yet I am a little surprised at the speech she has just made on this issue because there are a number of areas which are frankly misleading. Scientists will read her speech in Hansard open-mouthed with surprise at what she has said.

First, let me make it clear that it is far easier in the United Kingdom to do animal research rather than human embryo research. It is simply not true that it is more difficult. As has already been mentioned, a huge number of applications may be considered and go through local ethics committees in all sorts of embryo research, but they do not get to the HFEA first. With animal research, one applies directly to the Home Office for an animal licence to do the research, and it is quite a different kind of system. It takes much longer to get an application through, as I know to my own cost as somebody who has both a licence to do embryonic stem cell research and a licence to do animal research. They are both difficult to do, but the comparison she makes is unfair.

Secondly, the noble Baroness mentioned cloning. Cloning has nothing to do with this issue. Human in vitro fertilisation produces a number of fertilised eggs which cannot be used for the treatment of patients. That means that these eggs will be discarded or thrown down the sink. To many of us on this side of the argument, the moral imperative is that such material could be used to protect, maintain and improve research into human health and human diseases. That is what it is really about. Of course there is a shortage of eggs, but eggs do not apply in this situation. Nobody is suggesting that we necessarily clone for embryonic stem cells; that is an entirely different and completely separate issue.

As has already been said, original research in this situation would be impossible. One had to do original research based on the ideas that one has. We have already gone through the differences in various debates in this House, which I do not intend to repeat now, between the adult stem cell and the embryonic stem cell. They have different properties. That is a major puzzle, and why we still need to look at embryonic stem cells. You cannot replicate with adult stem cells first what you might see in the embryonic stem cell because of that difference. For example, there is their potential to grow into other tissue types.

I have to say that I think that the noble Baroness rather misquoted Professor Jaenisch and, to some extent, Martin Evans. I know that the quotation is of itself correct, but the wrong inferences are drawn. If we look at the letter from the scientists published last week in the Times, we can see that there is tremendous support for the research to continue. It is not fair to say that a wide body of scientific opinion believes that we should abandon embryonic stem cell research, or even downgrade it. That is simply not true. Most biologists believe that it is still a very important area of research.

I say that with utter truth. I have no wish to do something that people might find disreputable, but there is broad consensus among people with very strong ethics that this is the appropriate thing to be doing. It is nothing whatever to do with keeping the UK in the vanguard. If something is wrong, as a scientist, I would not want to keep the UK in the vanguard. This is a question of doing research that we fundamentally believe will open doors to important biological questions that we hope may ultimately help people. We must not confuse research on a cell to understand its properties with the issue of therapy, which is completely separate. Translational research is entirely different from basic research. We are discussing not translational research but basic research.

To my mind, it would be catastrophic if we abandoned those embryos, which would be lost after in vitro fertilisation. The only solution would be to destroy them against the wishes of the patients who, in my experience, give them extremely freely and with the great belief that we might find something to help other people in future.

My Lords, I strongly support the amendment laid before your Lordships today by the noble Baroness, Lady Williams of Crosby. She cogently and persuasively argued its merits. They are merits that we have discussed at earlier stages and, mindful of the injunction placed on us earlier, I will not be repetitive, but one or two new points need to be addressed.

The first is that the amendment clearly does not ban any of the things to which the noble Lord, Lord Winston, referred a moment ago. I think that he would accept that nothing in the amendment would prevent him or any other scientist laying an application before the Human Fertilisation and Embryology Authority to undertake research. It is simply that the noble Baroness has laid out the criteria that would be required before that research application is met.

Indeed, that is precisely what happens under the Animals (Scientific Procedures) Act 1986. I have experience of my local ethics committee, on which I served for my university, where applications for the use of animals are gone through thoroughly first before they are submitted to the Home Office. The Home Office has turned down 3.5 per cent of all applications. When the Minister comes to reply, I would be grateful if she could confirm that the Human Fertilisation and Embryology Authority has only ever once turned down an application. When that application came back before the HFEA, it was subsequently approved. Therefore, the argument that the noble Baroness placed before your Lordships' House absolutely stands.

The fact is that 2.2 million human embryos have been destroyed—as the noble Lord, Lord Winston, said, mainly through IVF cycles—or experimented on since 1990. It is not unreasonable to ask how many more will be needed before we see any therapies provided, even if one thought that it was licit to use them in the first place, which I do not. I accept that the amendment is an attempt to uphold the special respect and status adumbrated in the report of the noble Baroness, Lady Warnock, back in 1986, and which was incorporated in the 1990 legislation.

My other point is about public confidence—an issue to which the noble Baroness referred. The Human Fertilisation and Embryology Authority itself conducted a survey last summer run by ICM. It found that 48 per cent of UK residents disagreed with scientists creating an embryo that contains mostly human with a small amount of animal genetic material purely for research, compared with only 34 per cent who agreed. Many people, therefore, do not concur with some of the provisions in this Bill. Overall, 47 per cent—nearly half—agreed that creating embryos for research with mostly human, and a small amount of animal genetic material, concerned them. They said that it was meddling with nature. Nearly half—49 per cent—agreed that creating embryos for research with mostly human and a small amount of animal genetic material, concerned them because of what scientists might want to do next in research. Just over two-fifths—some 41 per cent—agreed that creating embryos for research with mostly human and a small amount of animal genetic material concerned them because they thought that it might be put into a woman or an animal, even though that was against the law.

Those are the anxieties that the Human Fertilisation and Embryology Authority discovered in the population at large. Therefore, it is not unreasonable for this type of proposal to be incorporated in the Bill. It is an ethical minimum that, for many of us, would not go far enough. However, at the last stage of this Bill, the noble and learned Lord, Lord Mackay of Clashfern, said that,

“it would help in reassuring people if we decided to include this amendment in the Bill.—[Official Report, 15/1/08; col. 1231.]

At present, I am inclined to believe that the HFEA may be less stringent than the Home Office in evaluating research proposals. Current requirements do not require cogent evidence which must include published peer-reviewed scientific data. Sending licence applications to peer reviewers is by no means equivalent. For example, they might not be aware of all the relevant work relating, as the noble Baroness has said, to adult stem cells, reprogrammed adult cells or umbilical cord stem cells. It is important that there is specific peer-reviewed data which can be examined, rather than merely opinion or assumption.

Her Majesty’s Government have clearly been persuaded to permit research with transgenic human embryos, true hybrids and various interspecies entities, for which there is no current scientific demand or scientific consensus as to their necessity. Therefore the clear safeguards, provided by the Hunt test, are essential to ensure that all such research has a sound scientific basis and can proceed only where it has been demonstrated that no alternatives exist. I hope that this amendment will be supported by noble Lords today.

My Lords, I also support Amendment No. 21. On Report, I supported an entirely separate amendment, expressing my opposition, in principle, to what we now call human admixed embryos. The majority of noble Lords voted in favour of such embryos and I accept the decision of the House. However, given the highly controversial nature of these embryos, it is right and proper that this House places clear and reasonable limitations upon where they are used.

Amendment No. 21—which we call the Hunt test—would ensure that human embryos are not used wastefully or unnecessarily. Such research would be a last resort. It is surely not unreasonable that human embryos, which many consider to have unique moral status, should be used only where other avenues for that research are shown not to be viable.

On Report, the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Lord, Lord Patel—as the noble Baroness, Lady Williams, has told us—indicated their belief that the HFEA already considers whether the use of embryos is necessary. If that is true, I simply do not understand why they oppose including a provision that would ensure that the HFEA continues to act in this manner in the future.

The noble Lord, Lord Darzi, suggests, in response to this amendment, that a rigid framework of the criteria set out in the legislation would seriously limit the research that the HFEA can license. Will the Minister clarify what kind of research the HFEA could permit which would fall outside the limits set by this amendment and how such research could be justified?

On numerous occasions, several noble Lords have referred to the deep public unease about this Bill. Even today, I have received another 20 or so e-mails, from people I do not know, bringing this point to my attention. We must not leave the rest of the population with the impression that a human embryo has no higher status than a fruit fly. That, I am afraid, is what we are in danger of doing with this Bill. Including the Hunt test in the Bill would give some assurance to the public that their concerns had been acknowledged. The amendment is an opportunity for this House to demonstrate that permission to use ethically contestable science and technology is not granted lightly. I hope that the Minister and many other noble Lords will endorse the very reasonable proposal advanced by Amendment No. 21.

My Lords, I do not want to get into the pros and cons of adult versus embryonic stem cells—there are cases for both—but I do want to return to the actual words in the amendment. My noble friend Lady Hollis has already mentioned the difficulty of requiring published, peer-reviewed scientific data when one starts research for the first time. If the amendment had said something to the effect that the research must be peer-reviewed, that would be reasonable, but it must be published, which makes it more difficult, perhaps impossible, to do research for the first time.

Proposed new sub-paragraph (6)(b)(i) in Amendment No. 21 says,

“the research proposed … is likely to achieve its specified purposes”,

but that misunderstands the nature of research. When research is done for the first time, you cannot possibly know the answer. Indeed, it would be ethically immoral to do the research if you knew the answer before you started. You hope that it will achieve its purpose, but unfortunately research often fails—that is the nature of it. We can never be sure when we start it, so who is to judge the likelihood of the research achieving its specified purpose? That is not achievable, so the amendment is not valid in its present form.

My Lords, I spoke to the amendment when it was proposed on Report, and I remain of the view that I expressed then that it would be a useful addition to the Bill. As we were told on the last occasion, this is how the HFEA goes about the matter at present—the noble and right reverend Lord, Lord Harries of Pentregarth, told us that. It is therefore perfectly reasonable that the tests that are currently used should continue to be used.

The noble Baroness, Lady Hollis, talked about proposed new paragraph (b) in the amendment, and the noble Lord, Lord Turnberg, with his great scientific background, has expressed the same concern. Proposed new paragraph (b)(i) says in effect that the present state of published, peer-reviewed scientific data suggests that the research is likely to achieve its purpose. That does not necessarily mean that it will achieve what one would like it to achieve, but it may well clarify a situation, which may be its purpose. Research sometimes fails, as we know, but the idea is that it must have promise.

My impression is that when the Joint Committee considered the matter, we were given the guidelines that the Medical Research Council uses to support research. After all, research money is not all that easily obtained, and the council must ensure that the money that it is putting into research is well used. The idea is that the likely outcome of the research is advancement of the knowledge of how an embryo works or a disease may develop. The essence of the matter is the way in which the embryo has been treated hitherto in the legislation.

In 1990, Parliament introduced a control on human embryo research and the treatments that use human embryos. It made it absolutely clear that after the primitive streak develops at 14 days, the embryo should not be used for research at all. I should have thought that there is a good deal to be said for specifying that that is the point at which there is a potential for human life. Until that point the embryo has a potential, right enough, but not necessarily a potential to develop into a human being. In the period before the primitive streak develops, Parliament thought that it was important to recognise that the embryo has special qualities which require special treatment. One of those treatments, of course, is that research using embryos should, first, be licensed by the HFEA. Secondly, as has been pointed out, the research must necessarily involve the human embryo; and, thirdly, the whole procedure should be as laid down by Parliament.

In looking at this matter again, it is perfectly reasonable that the same general framework should apply. I certainly do not take proposed new paragraph (b)(i) as meaning that you cannot do new research. That is not at all the meaning of the phrase. It means that the evidence accumulated so far suggests that it is likely to be useful research. It may not produce the answer the researcher wants, and indeed it may result in an answer the researcher does not want, but that is equally important in the development of the subject matter. So I support the amendment because it is useful from the point of view of recognising the public concern, which undoubtedly there is, surrounding embryonic research. It shows that Parliament regards that as a very important and special area of research which requires careful and thorough safeguards.

My Lords, I support the amendment and agree with every word just spoken by the noble and learned Lord. However, were the amendment to be accepted, it may be necessary to look at the precise phraseology. I was a chemist in a previous incarnation and as I moved from being an undergraduate chemist to a research chemist, I can remember entering a completely different world where the experiments did not work out. As the noble Lord, Lord Turnberg, has said, in research you often do not know what is going to happen because it is a very uncertain procedure. Given that, you cannot be certain that a particular piece of research is likely to achieve its specified purpose, so the phraseology may need to be honed. However, the broad principle of the amendment is to enshrine in the Bill a note of caution.

I have only been able to be present now and again during the passage of the Bill through the House, but I have read all the reports as they have come in. There has been an understandable pressure from those engaged in the research to avoid unnecessary regulation, and indeed to deregulate to a degree. That is the natural instinct of those engaged in the research, but against that has to be put the issues so clearly set out for us by the noble and learned Lord. It is right that there is a note of caution written into the Bill so that we do not get drawn into thinking that research on embryos is a normal, natural way of proceeding. It should be done by exception. If the amendment is accepted, it may need to be tidied up in another place, but fundamentally it seems to me to be morally right.

My Lords, I find myself for the first time throughout the proceedings on this Bill, and indeed on the Joint Committee on which we both served, taking a different view from my noble and learned friend. Perhaps I may advert for a moment to the right reverend Prelate. He acknowledged that the amendment is infelicitously worded for the good reason explained by the noble Lord, Lord Turnberg, which is that you cannot know in advance whether research is likely to achieve its specified purposes. Given that, surely the right approach is to say, “We like the principle, but clearly the wording is wrong. The amendment needs to be taken back and looked at again”. When you add to that the point made, but not wholly answered, by the noble Baroness, Lady Hollis, that if it must include published, peer-reviewed scientific data that would make it almost impossible to have any new research, I find those arguments quite strong. It would be perverse to then pass the amendment into law at this stage and hope that someone else will amend it later in another place. That does not seem a sensible way to proceed. Nevertheless it is an important debate and it is right and to the advantage of the community as a whole that it is being held.

I was struck by the leading article in the Times last Saturday on the use of tissue banks—we have still to come to an amendment on this issue—which stated:

“Stem cell researchers sit uncomfortably on the boundary between invaluable scientific endeavour and inviolable human ethics”.

That is exactly right. But when one comes to the end of the article it states:

“Stem-cell researchers need to do little more than move a muscle to spark off a round of agonised soul-searching”.

That is a perfectly proper reaction, if I may say so. The article continues:

“Difficult questions will continue to arise and must be scrutinised case to case. With equal measures of determination and sensitivity, policymakers must balance pragmatism and ethics. In some parts of the world, misplaced didacticism would take over and elevate scientific endeavour above personal or religious ethics. Elsewhere, ethics may gain primacy over science”.

It concludes:

“It is to the credit of Britain’s democratic process that scientists and ethicists compete to be heard”.

Those are very wise words but the article implies somehow that scientists are not ethical. That is not my experience. There may be a few mad scientists somewhere in laboratories who simply dismiss the whole ethical argument, but the overwhelming majority of scientists who are engaged in these sensitive areas are acutely conscious of the ethical argument. Indeed, when the Bill first appeared as a draft, it was called the Human Tissues and Embryos Bill and there was an immediate reaction to say that we were simply putting tissues and embryos together as though they were equal. We were not; we have always recognised, from the report of the noble Baroness, Lady Warnock, to which reference has been made, onwards that the embryo plays a very special part and that therefore any research involving embryos has to have regard to the ethical arguments as well. I believe that, overwhelmingly, scientists do that.

I sympathise with and understand the purposes of the amendment of the noble Baroness, Lady Williams, but it would not be sensible to put it into the Bill when even those who support it recognise that it carries some flaws. Perhaps the message to the Government should be, “Is there not something we could write in here?”. I say this because the Joint Select Committee was critical of the fact that this Bill did not include, as the 1990 Bill did, an underlying ethical argument and purpose. It is something that this Bill lacks and it is not to the credit of this House that we have not yet found a way of rectifying that.

I do not think that this is the way for the reasons explained by the noble Lord, Lord Turnberg, and others. However, there is a purpose here which somehow needs to be reflected in the Bill. I hope that the House will not pass the amendment. Perhaps the noble Baroness may be prepared to withdraw it on an undertaking from the Government—I do not know whether they are prepared to do this—that they will continue to look at this argument and see whether it is not possible to write into the Bill an underpinning ethical argument. The Joint Committee felt that that was lacking and it is something we ought to put in.

My Lords, my comments will be extremely brief because I fully appreciate the intentions underlying the amendment and the ethical considerations that have led many noble Lords to support it. I am concerned about one matter only: the suggestion that cogent evidence must include published and peer-reviewed scientific data would effectively prevent researchers in the United Kingdom taking ahead cutting-edge research at the frontiers of science. It would mean that they could be engaged only in research on human embryos and human admixed embryos, following up work that had been done and published elsewhere. That alone makes the amendment quite unacceptable and, despite the excellent speeches we have heard, it is for that reason that I cannot support it.

My Lords, this has been an important debate and I am glad we have had it. Amendment No. 21 seeks to limit the HFEA’s ability to license embryo research by extending the criteria the HFEA must consider before granting a licence. That would require published and peer-reviewed evidence demonstrating both that the research is likely to achieve its specified purpose and that it is not possible to achieve the same end result without the use of embryos.

The Government have carefully considered this issue in the light of the safeguards that already exist in the legislation, and which have been applied in practice since 1990 by the HFEA. We believe strongly that the existing controls are clear and sufficient. The HFEA undertakes a peer review process for each research licence application. However, making it a requirement that published evidence is available could be said to go against the fundamental principles of research, which are designed to test theory and produce facts. Those cannot be known before the relevant research has been undertaken.

Many noble Lords have referred to the statement from my noble friend Lord Darzi, who spoke of the importance of peer review, but he was referring to peer review of the licence application. The amendment in question refers to peer review data that are published demonstrating that such a research project would succeed. As other noble Lords have said, those two things are very different.

Under the provisions of the 1990 Act, the HFEA may grant research licences only where it deems the research necessary or desirable for one of the statutory purposes set out in the Act. The embryo does indeed have special status and it will continue to do so. The HFEA must be satisfied that the creation of embryos specifically is necessary for that project of research to be undertaken. Again, that is already in the Act. Each project is scrutinised on its merits to ensure that those criteria are met.

The noble Baroness, Lady Williams, and others have spoken of the number of applications rejected. It may be helpful if I clarify that a project for which a research licence is sought will have to have received approval from a research ethics committee before a licence can be granted. Where a project would in principle be suitable to be licensed but insufficient information has been submitted to the licence committee, or the committee is of the view that an aspect of the project needs to be reconsidered, it is usual practice for the committee not to reject the application but to ask the applicant to submit further information or undertake changes to the specifications of the project for reconsideration at a later date. Hence there are no, or very few, rejections.

The noble Baroness, Lady O’Cathain, asked what research this amendment would stop. It is difficult to say. The amendment would make it difficult for the HFEA to license research generally unless there was evidence in the first instance that the research was likely to work. As the noble Lord, Lord Walton, said, it would prevent novel and cutting-edge research.

The Government believe that we should not proscribe or unnecessarily curtail any avenue of research, as we cannot know in advance where breakthroughs may occur. For nearly two decades the HFEA has licensed embryo research with the flexibility to form its own tests on whether the use of embryos is necessary for each project of research. That system has worked well and I do not believe there is any need for change. As such, I urge the noble Baroness not to press her amendment.

My Lords, I am grateful to noble Lords on both sides of the House for their contributions to what has been a significant and fascinating debate. I shall not keep the House long but I want quickly to make a couple of points about the conclusions we are approaching.

First, the noble Lord, Lord Jenkin of Roding, said—and he is absolutely right—that there is a distinction in people’s minds between embryonic stem cell research and other kinds of research. In that context, I quote Professor Thomson, who was the first person to produce the human embryonic stem cell. He said:

“If human embryonic stem cell research does not make you feel at least a little bit uncomfortable, you have not thought about it enough”.

Those are the words of one of the premier scientists in the field. Although the noble Lord, Lord Jenkin of Roding, does not support my amendment, he indicated that there was a distinction that should be underlined about the nature of research into embryos and the fact that embryos are not the same as other kinds of genetic material. That is an important distinction to make and the noble and learned Lord, Lord Mackay, quite rightly indicated that there is considerable public concern about maintaining that distinction.

The noble Lord, Lord Winston, for whom I too have the greatest respect, seemed to say that the amendment would make it very difficult to pursue embryonic stem cell research. That is not the case. In proposed heading (b)(ii) in Amendment No. 21, the requirement reads that,

“it is not reasonably practicable to achieve the specified purposes of the research without using human embryos or human admixed embryos”.

In other words, where it is clear that that is required, it is not forbidden by the amendment. It simply asks that there should be careful consideration of what alternatives exist.

A number of noble Lords, including the noble Lord, Lord Turnberg, and in particular the noble Lord, Lord Walton, indicated that they have difficulties with,

“published, peer-reviewed scientific data”.

As the noble Lord, Lord Jenkin of Roding, made clear, if the problem arises from “published”, those of us in favour of the amendment would be willing to reconsider that. The Bill has yet to go through another place so there is lots of time to reconsider “published”.

“Peer-reviewed scientific data” fall into a different category. My knowledge and recollection are that when research councils consider proposals for research they ask for peer-reviewed scientific data in most cases to establish that the research has a real possibility of being, in effect, worth the money invested. I find it strange that people should object to those words. I repeat that I can see there is a problem with “published”. Indeed, the noble Baroness, Lady Hollis, raised that point. I apologise that I was not able to reply to her. If it raises great difficulties, we can consider it again.

I repeat that the amendment does not rule out embryonic stem cell research. It allows it in cases where it is clearly the one way forward. I think that meets the point made by the noble Lord, Lord Winston. Concerning his objection to my providing some indications that in some cases animal research had been ruled out by the Home Office, and that there did not appear to be a case of the HFEA having ruled out in the end any of the research put before it, I deliberately chose to give proportions and not numbers for the reasons that the noble Lord, Lord Winston, gave. I recognise that there are thousands of applications for animal research and very few for embryonic stem cell research. That is why I gave proportions and never mentioned numbers, which I thought would be misleading. The proportions stand whatever the actual numbers may be.

Finally, I am sorry that the Minister, who has been extremely helpful throughout the debate, seemed unable to say that the Government would take the issue back and consider it before the matter goes to the other place. I wish she had felt able to do that because I believe that there is sufficient support in the House for the amendment for it to be taken seriously. Some noble Lords who have spoken to it are people whose views, not least on the real state of public opinion, should be taken seriously. So far, the Government have rejected virtually every amendment on these lines. Therefore, I must ask to test the opinion of the House.

[Amendments Nos. 22 to 24 not moved.]

Schedule 3 [Consent to use or storage of gametes, embryos or human admixed embryos etc.]:

25: Schedule 3, page 65, line 2, at end insert—

“Cases where consent not required for storage and use for research10A (1) The human cells of a person (‘the donor’) may be used to bring about the creation of an embryo or a human admixed embryo in vitro; and any embryo or human admixed embryo so created may be used or stored for the purposes of any project of research without the donor’s consent if the following conditions are met.

(2) Condition A is that the human cells are lawfully taken from or provided by the donor.

(3) Condition B is that the human cells were first stored or used prior to the day on which Schedule 3 to the Human Fertilisation and Embryology Act 2008 comes into force.

(4) Condition C is that the human cells, embryos or human admixed embryos are used in circumstances such that the person carrying out the research (“the researcher”) is not in possession, and not likely to come into possession, of information from which the donor can be identified.

(5) Condition D is that it is not reasonably possible to contact the donor to obtain their consent.

(6) Condition E is that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project of research for which the human cells, embryos or human admixed embryos are stored or used has to be confined to, or relate only to, material in relation to which there is an effective consent.

(7) Condition F is that it does not appear to the researcher that the donor has indicated any objection to such use or storage (as applicable).”

The noble Lord said: My Lords, this is another amendment that was tabled on Report by my noble friend Lord Patel. Its purpose is to allow existing holdings of anonymised cells and cell lines to be used in embryo research in circumstances where it is not possible to obtain specific consent. The principle of consent underpins this Bill. Consent must be obtained wherever it is reasonably possible to obtain it. The Bill, as drafted, rightly introduces a new legal requirement that consent must be obtained from donors of tissues and cells before such material is used in research involving somatic cell nuclear transfer, in which embryos, or human admixed embryos, are created to generate embryonic stem cells.

However, huge collections of cells and cell lines, pre-dating this Bill and scrupulously gathered over many years, have not been specifically consented for use in embryo research and cannot now be reconsented because the donors are untraceable or deceased, the samples were anonymous, or it was agreed with the donor that the individuals in question would not be contacted again. Many of these collections are very scientifically valuable and cannot be reproduced readily, either in a reasonable timescale, or at a reasonable cost. Indeed, they may not be reproducible at all, particularly where they relate to very rare diseases or are accompanied by a wealth of historic associated data, collected over long periods.

The use of these collections in embryo research may offer tremendous insights into the development and causes of the serious and rare diseases from which their donors suffered. In the future, of course, researchers will have to take into account the requirement to obtain specific consent in designing and building tissue collections that may be used in embryo research but, retrospectively, this is impossible. This amendment therefore provides a limited, but very important, transitional exception to the requirement for specific consent introduced by Schedule 3. The exception applies only in relation to existing holdings where it is not reasonably possible to go back to donors to obtain specific consent, where the cells or cell lines have been anonymised, and where it is not possible to use other materials for which specific consent has been obtained. The amendment also provides that the material must have been lawfully obtained in the first place and that there must be no indication of any objection from the donor.

I quote one major example, from Professor Chris Shaw at King’s College London:

“Over the past 5-10 years we have established primary fibroblast cultures and transformed lymphoblast cultures from patients with motor neurone disease … Because MND is rapidly fatal the vast majority of these patients have now passed away and we could not obtain consent from them. In some of these patients we have subsequently discovered unique genetic mutations.

It is precisely these cells that we would like to use in nuclear transfer experiments to create embryonic stem … cells. The ES cells generated will carry a gene defect that is harmful to motor neurones. We can drive these embryonic cells to differentiate into motor neurones and hope to identify”—


“biochemical events through studies of gene and protein expression and cellular behaviour. These cells may also be used to screen for therapeutic compounds”.

There could never be any intention or, indeed, any possibility, that such embryos, created by nuclear transfer and derived from people with these diseases, could ever be implanted into humans or animals. The only purpose of this amendment, and the cell lines that are in existence, is to investigate the processes of diseases occurring in the individuals from whom these cells were obtained.

The Minister agreed at Report stage to take this matter away and to come back. I am very grateful for the letter from the noble Lord, Lord Darzi, which says that the Government take the view that such an exception, if accepted, must be proportionate and necessary, and that the terms of the exception will require,

“careful consideration and should be made subject to appropriate safeguards. It will be particularly important that the exception”,

if the principles underlying the amendment were accepted,

“should only apply where there would be a significant adverse impact on scientific research in the public interest, if existing cells could not be used. The exception could not be used to overcome mere administrative inconvenience, and to ensure it could not be relied upon inappropriately. External scrutiny will be needed of the operation of the exception and to ensure that the research is in the public interest”.

He went on to say:

“The Government believes that a very compelling case has been made for an exception to the consent provisions in the Bill as drafted. We have given a clear commitment to take this issue away for further consideration in the other place”.

I understand that that is exactly what the Government intend to do. If I can have an assurance on that issue, I would certainly not wish to pursue the amendment further. I beg to move.

My Lords, this issue was not debated by the scrutiny committee and we did not debate it at Committee stage. My noble friend Lord Walton of Detchant has reminded us that we discussed this issue on Report, and we now have the amendment before us. I have grave reservations about it, although I fully understand the motives of my noble friend in bringing it forward. He is right to tell us that if genetic materials were available, they could be turned into human admixed embryos or into human embryos, but they would not be implanted. But of course they could be used for research, they would be created and they would exist for 14 days before we destroyed them. Many of us who would have profound misgivings anyway about the creation of human embryos in the first place, or human admixed embryos, would therefore be opposed to doing this.

There is another issue that ought to unite Members of your Lordships’ House, even if they do not accept the premise that we should not create such entitites in the first place. No one who had given those tissues perhaps 40, 30, 20 or 10 years ago could have possibly known at that time that we would be considering in 2008 the creation of human admixed embryos. So it would not have been possible to have given consent at that time for this proposal. We simply could not have known.

I can say that if I had given permission 10 years ago for any genetic material of one of my own children to be used—indeed, two of them had treatment at Liverpool’s Alder Hey hospital—I would have had no problem at all in those materials being used for scientific research, but I would have a profound problem with that material being used to create a human admixed embryo or human embryo for experimental purposes. It would be crazy to trade a list of horrendous diseases. All of us want to see disease conquered and want to use legitimate means to do that, but we should not blind ourselves to the other considerations when we think about issues of this kind. I particularly emphasise this question of consent.

I want to take the House back for a few moments to the Alder Hey organ scandal. I have been a supporter and admirer of the wonderful work of that hospital, both as the father of children who were treated there and as a local Member of Parliament at that time. It grieved me to see that wonderful hospital mired in allegations of organ theft, body snatching, contemporary necromancy and the rest of it. It was a tragedy for that hospital which was wholly avoidable, if only some of those who were intent on pushing the boundaries in the way that they did had considered their actions at the time. Who in the House would disagree with the response to the Royal Liverpool Children’s Inquiry of Ministers who said:

“The traditional paternalistic attitude of the NHS, that the benefits of science and research are somehow self-evident, was no longer acceptable”?

It is not just Ministers who have held that view. The General Medical Council’s guidelines on consent for research state the following:

“Obtaining consent is a process involving open and helpful dialogue, and is essential in clarifying objectives and understanding between doctors and research participants”.

The General Medical Council goes on to say that,

“one must not make assumptions about participants’ views, but discuss matters with them”,

and it describes how participants should be presented with information that first includes,

“what the research aims to achieve”,


“an outline of the research method”.

Can one retrospectively presume that previous approval for supposedly any research should necessarily encompass that which was utterly inconceivable at the relevant time? Perhaps the Wellcome Trust provides the best answer in a document entitled Public Perspectives on Biomedical Research, in which the following is stated:

“Implied consent was not welcomed as a model of the consent process. Implied consent was equated to no consent”.

When we discussed this issue on Report many of your Lordships raised the question of human rights and my noble friend Lord Patel, who is absent today for understandable reasons, said at the time that he did not really understand human rights questions. Sometimes we can become myopic in the individual disciplines in which we live. We can sometimes become particularly absorbed with the ideas that influence the work we undertake in the disciplines in which we are involved. I do not think we should avoid the question of consent. We should not try to impute retrospectively to people who have never had the chance to give authority for this work something with which they might not have agreed. Certainly if it is possible to trace those who were involved at the time in giving such tissues, it might be possible to make this into a workable proposition; but without that I really do not believe that the amendment should be supported.

My Lords, I support the amendment in the names of the noble Lords, Lord Walton and Lord Patel, concerning existing cell lines donated by patients who may or may not have given their consent to embryo research. We are assuming that they did not give their consent. It seems to me that a lot of patients in that situation, as the noble Lord, Lord Alton, said, would not have conceived that this sort of thing could happen in the future, but many of them may have conceived that, yes, it might happen; and when such people donate their cells they are prepared to let medical scientists research in any way that they choose within the guidance of the Government of the day.

The Government seem to be most worried about Article 8 of the human rights convention. There is a very good response from the Government on the science side, but we have a problem as to whether this issue contravenes Article 8 which states that a person has a right to personal autonomy. The Government say that the use of a person’s genetic material without their express consent to create embryos and their subsequent use and storage would interfere with a person’s rights under Article 8 of the convention.

It is arguable as to whether using someone’s cells to make embryo stem cells, which are then destroyed anyway after 14 days, contravenes their human rights, because a bundle of cells, be they human embryo cells—we heard this from the Ministers in Committee—have no human rights anyway. Are we not splitting hairs a little by saying that it would contravene Article 8 if this research went ahead without the express consent of the individual? I suggest that we are being too particular and thoughtful on this issue. We must always keep in our minds, as the noble Lord, Lord Walton, said, that this sort of research could lead to huge relief of suffering for individuals. He gave the example of motor neurone disease, but there are many others. Surely these advantages will outweigh the disadvantages and the problems that we are arguing about.

My Lords, when I read this amendment prior to the debate, I was absolutely horrified because I found it breathtaking in its arrogance. But the noble Lord, Lord Walton, in introducing the amendment, has not been in the least arrogant—he has been the voice of reason itself. So I turn again to the wording.

I beg noble Lords to remember that only a very short time ago, when it was suggested that you ought to be able to take organs from dead people whether they had agreed or not, there was an outcry from the public. It is an extremely sensitive thing to assume that, with no consent forthcoming, anything can be done with human cells. It is that part of this amendment that worried me so much. It does not say that all the conditions must be met—I wondered whether it was just some of the conditions, or one of the conditions, or any of the conditions. That bothered me.

New sub-paragraph (2) says:

“Condition A is that the human cells are lawfully taken”.

I imagine, because of what the rest of the amendment says, that you do not have to consent for such cells to be lawfully taken. That worries me. Perhaps I am wrong in my reading of the amendment, but I was trying to see exactly what we were being asked to consider and pass here. It worries me if anything can be taken lawfully without the agreement of that person—or of the parents if it is a child.

New sub-paragraph (4) says:

“Condition C is that the human cells … are used in circumstances such that the person carrying out the research … is not in possession, and not likely to come into possession, of information from which the donor can be identified”.

That suggests that there is no requirement even to try to find out whether consent can be given. That worried me very much. New sub-paragraph (5) says:

“Condition D is that is it not reasonably possible to contact the donor”.

I warned the House on an earlier occasion about the danger of using the word “reasonably”. It is true that legislation has not been made into statute because the Houses of Parliament found unacceptable the use of the word “reasonable”, because it is so bland. What is reasonable to one person may not be reasonable to another. New sub-paragraph (5) says,

“it is not reasonably possible to contact the donor to obtain their consent”.

My goodness, you could say, “It was not reasonably possible, because I was on holiday, time was running out and I could not reach the person”; or, “Their phone was out of order”; or, “Their number was unlisted”; or, “The post in Arundel is very bad and I could not contact them that way”; or, “My computer had gone down”. So many easy excuses could be made for not contacting the donor to obtain consent because, to some people, it would not be reasonable to continue to try to find consent if even one of those circumstances arose.

My Lords, I am sorry; I do not think that that is possible.

The wording of new sub-paragraph (7) is very sloppy. It states:

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

Surely we cannot pass that, because the researcher is very keen to go ahead with the research. I do not doubt what has been said about a lot of the research being very important and instrumental in helping to find cures for diseases that we cannot treat at the moment. None the less, we cannot accept the provision that “it does not appear to the researcher that anyone has objected”. We would not have that in any condition, because it is so sloppy.

Because we are debating Amendment No. 26 as well, in order that I can make just one speech, I would like to speak about children. What we are being asked to do is bypass the parents. New sub-paragraph (2) does not even say, “The children or their parents should be contacted”. Instead, it says:

“Condition A is that the human cells are lawfully taken from or provided by the child before the child attains that age of 18 years”.

Eighteen years? You can be married at 18, you can sign up as a soldier and, if a boy of 17 steals birds’ eggs from a nest, he can be sent to prison. But he is apparently not capable of saying, “I agree” or, “I don't agree”, because you do not have to bother to ask him, because he is not 18. I cannot accept that.

New sub-paragraph (4) says,

“the child does not appear to the person storing or using the human cells … to have indicated any objection”.

That is the same point that I touched on earlier. We cannot accept that any researcher anxious to carry out research can be allowed to say, “It did not appear to me that anyone was objecting”. There must be something far clearer than we have in these amendments, if we are trying to do what the noble Lord, Lord Walton, said. I respect the noble Lord and I know that he is absolutely genuine. I am not attacking him, but I am saying that any part of a human being is theirs to do what they like with, not ours to do what we find convenient, and these points and others in the amendment worry me greatly. I do not like Big Brother. I do not like the fact that Big Brother looks at us a lot of the time and knows extraordinarily intimate details about every one of us. But he is not going to have the right to assume that we will give bits of our bodies to be used in research when we have never been asked.

My Lords, it may be helpful to the House if I raise something that I did not raise in the previous debate. Almost certainly I am the only Member of your Lordships’ House who has regularly approached patients, asking for consent to use their embryos for the purposes of generating stem cells. The consent procedure is different from that in any other form of medical research with which I have been involved for many years. I hope that noble Lords will understand that I am speaking with complete probity. When we deal with any embryo research, we make sure that we give not just the routine information you might give somebody about other forms of research—patients attend seminars and talks about the value of stem cell biology and there is a great deal of information given to them that is well beyond what you might give about other tissues that might be taken, for example, during an operation.

There are not many centres doing embryonic research of this kind in Britain—I think that only a handful of licences have been given. I imagine that what has happened in my experience at Hammersmith Hospital must reflect what happens in other units. In practice, we make absolutely clear to patients that we hope to generate embryonic stem cells in order to produce stem cell lines for whatever purpose may be appropriate. It is very open-ended. In effect, the consent covers pretty well every procedure. It is true that some of our patients will not have heard of admixed embryos but that is perhaps the one exception. That apart, the patients to whom I have spoken and those to whom my colleagues have spoken give their embryos entirely freely for whatever stem cell research might be appropriate. So, in a sense, the consent has already been obtained, even though it has not been specified for a specific research project.

I do not think it is quite fair to say that it is like the post in Arundel, as the noble Baroness suggested. It is a little different because the one concern that these patients have is that some of their genetic material might become public. That has always been a slight problem. In practice, all these research projects are anonymised for that very reason. Therefore, if a stem cell line is produced, there will be no way of knowing later whether it relates to a specific patient. When the stem cell line goes to the Stem Cell Bank, which is run by the Medical Research Council and my colleagues, it is not known which patient has given those cells. The anonymity is maintained to ensure that there is no risk of the genetic material becoming public, and that is why the patient cannot be traced—not for any other reason in the process.

My Lords, the issue in this amendment turns around the meaning, nature and understanding of the word “consent”. We all admire the noble Lord, Lord Winston, for the work that he has done in this area but I wonder whether the patients with whom he deals in his clinic are not a self-selecting group who will naturally be open to this sort of research in the first place. I would at least want to question whether it is fair to extrapolate that.

There is also an issue of democracy here, and it is very appropriate that we should come to that as we reach the end of the passage of the Bill through this House, which in many ways has shown the House at its very best. In any democracy you have to balance the rights of the majority with those of the minority. Clearly, in our society the majority favour the continuation of embryo research. I should think that that was almost certainly the case, although earlier today we heard of significant minorities—perhaps they are majorities but I tend to think that they are minorities—who have varying degrees of resistance to this concept. They include some who think that it is a barrier that must not be crossed under any circumstances—particularly, but not only, in relation to human admixed embryos. We recently enshrined in law provisions for significant minorities in our society.

Those who have given tissue in the past under a general consent include people who, had they been asked the question at the time, would have been adamantly opposed to this form of research, although they would probably have been open to almost any use of their body tissue other than creating embryonic life. I think that we owe a duty to that minority who have gone before us because in our democracy not only do we have to deal with living minorities but we have to have a sense of the democracy of the dead as well. I take particular account of the rights and views that we can reasonably presume would have been held by previous generations. Therefore, I think that, as the noble Lord, Lord Walton, said, the principle of consent is at the heart of the Bill.

However, one can be torn. During my life as a priest, I have watched people die of motor neurone disease and other diseases which are horrible and which I would not wish on anyone. I wholeheartedly wish for a cure, but I also understand the views of the minority of people, living and dead, for whom this type of research is a bridge too far—something to which they fundamentally object. I understand those views, despite the pressure that we naturally feel to allow the sort of research that would be permitted here. I have more sympathy for Amendment No. 26 but I am talking specifically about Amendment No. 25. To advert to what the noble Baroness, Lady Tonge, said, we cannot be too thoughtful about this; we have to think about the rights of minorities and the rights of those who gave their tissue.

At this point on Report, the noble and learned Lord, Lord Mackay, said that consent meant consent and that we should presume that, if people gave consent, that was the case, whatever research might take place in the future. However, I think that we are dealing with something unique here in research terms because of the views of a certain minority. I am not wholeheartedly part of that minority myself. I do not believe that IVF treatment is necessarily wrong, and I have certain open views about the status of life at the very first moment, not least because so many embryos are lost in the early stages of the natural reproductive process and so on. However, I think that we owe it to the minorities—who, if they were able to make their voices heard, would be adamantly opposed to what we are describing—not to make a general consent for the use of tissue gained 20 or 30 years ago or whatever.

My Lords, I support the amendment. I appreciated the seven-page letter which the noble Lord, Lord Darzi, wrote to most people who spoke on this subject on Report and which outlined the pros and cons of this type of amendment—in particular, the balance that has to be struck between, on the one hand, the rights of an individual who may be long dead and who gave cells for research and, on the other, the future generations that may benefit from the use of those cells. The letter carefully outlines the thorough safeguards that would have to be introduced before that could occur.

I want to point to one particular element in the letter and to probe a little further. In paragraph 23, the noble Lord talks about the need for external scrutiny in the process by which permission is granted for the use of stem cells. That might well provide this whole issue with an important area of safety. I mentioned this briefly on Report, suggesting the use of the Patient Information Advisory Group—PIAG—which is used in the Human Tissue Act. That body seems to have worked reasonably well in allowing for research purposes the use of tissue from patients who are no longer available and in seeking further consent. Perhaps that sort of model would be applicable here.

My Lords, I draw the attention of the House to one point in Amendment No. 26. I listened with great interest to the noble Baroness, Lady Knight of Collingtree, as I always do. We very rarely agree on these matters but I always like to listen to the points that she makes because they are important. In her analysis of the amendment, she did not reach proposed new sub-paragraph (6), which states:

“Condition E is that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project of research for which the human cells, embryos or human admixed embryos are stored or used has to be confined to, or relate only to, persons who have capacity to consent to it”.

This is principally about research into childhood diseases which are so severe that the children never make it to adulthood. That is why this is such an important amendment. The noble Lord, Lord Walton, has spoken to us on previous occasions, giving examples. I want to make that point because I think that this afternoon we are in danger of giving the impression that only those on one side of the argument are approaching this matter with a concern for children in particular. That is not so; this is a set of circumstances where one would wish to take what I believe are now the main tenets of the Mental Capacity Act and apply them to this form of research.

My Lords, I assume that the basis of this amendment is that the human cells in question are lawfully taken from or provided by the donor in relation to some definition of research. Some consent is implied. There is no question of this happening completely without the consent of the donor. I said before and I remain of the view that the term “research” includes research as it may develop. As we heard in connection with the previous amendment, you cannot tell when you start research where it may lead, although if you wish to get money for it you had better be able produce some good reason why you want to do it. New sub-paragraph (7) is intended to deal with that situation. At the moment it is restricted to the researcher. As my noble friend has said, the researcher is keen to get on with the research so he will not be looking very hard for reasons why he should not be able to get on with it. It may be that new sub-paragraph (7) needs to be opened out a bit to say that there does not appear to be any reason to suppose that the donor would object to the use or storage of the material for this particular purpose. What the right reverend Prelate referred to might well come under that. If you were to find out a little bit about the donor’s background, you might conclude that they are in the minority that he speaks of who would not wish this research to be carried out. It may require some more elaborate provision than is here at the moment but I think that is the purpose of new sub-paragraph (7).

My Lords, after consulting the Minister, it seems appropriate that I should now speak to Amendment No. 26 which is also tabled in my name. This amendment relates to consent by parents and guardians on behalf of children lacking capacity and seeks to ensure that research involving the tissue and cells of such children to create embryos and human admixed embryos can be undertaken in important but limited circumstances, subject to strict safeguards. The Bill does not currently make any provision for parents or guardians to consent on behalf of their children. This has the regrettable side effect that it will in future be impossible to carry out embryo research using cells from sufferers of serious or life-threatening diseases that exclusively affect and usually kill children, such as muscular dystrophy, Batten disease and many more. This removes a vital route to increasing our understanding of the development and causes of these terrible diseases. This amendment makes provision for those with parental responsibility to give consent for their children where they lack capacity to consent, provided each of the conditions set out in the amendment are met. The conditions include that it is not possible to undertake the research using tissue or cells from donors with capacity and that the tissue or cells were lawfully collected, deriving, for example, from blood, muscle or tumour tissue removed with parental consent for treatment or diagnostic purposes. There must also be no knowledge that the donor indicated any objection. This research would, of course, be subject to the scrutiny of the HFEA and an NHS research ethics committee to the requirements of the common law concerning the removal of the tissue and to the regulatory requirements of the Human Tissue Act.

This is a vital amendment. I gave an example in Committee. Much of my earlier research involved muscular dystrophy. The most severe form of muscular dystrophy is called the Duchenne type and occurs in young boys. It begins to cause difficulty in walking early in life. By the age of nine or 10 those boys are confined to a wheelchair and many do not survive beyond the age of 20 or thereabouts. It is now known that it is possible to diagnose that condition in the newborn infant by taking a blood sample and a small sample of muscle by needle biopsy. If a therapeutic opportunity arises, if a new treatment becomes available, it is clearly important that the treatment should begin immediately after birth in order to prevent the breakdown of the muscle which is so significant a feature of that disease. There are now five trials of treatment continuing in the UK and in other parts of the world using various forms of treatment for muscular dystrophy.

On Report the Minister suggested that, because an infant or child below the age of consent was incapable of giving valid consent, this would not be a possible form of research. If that argument were pursued to its logical conclusion, it would make the practice of paediatric medicine virtually impossible because, for diagnostic procedures and treatment to be given to young infants and children, parental approval is necessary. The General Medical Council and the BMA in its handbook, Medical Ethics Today, have made clear the carefully defined circumstances in which research involving children with explicit parental consent is feasible. For that reason it is crucial that this amendment or something very like it should go in the Bill to enable such diagnostic work on infants to be carried out. In the case of the muscular dystrophy patient, if you can diagnose the condition at birth, it would not be impossible to take a tiny sample of skin to create an admixed embryo and a stem cell development of muscle cells to treat the condition. This kind of research is at the cutting edge and must be pursued.

My Lords, the Bill sets out a framework where to use a person’s gametes or other cells in the production of an embryo or a human admixed embryo there must be effective consent from that person in place. Consent, as noble Lords have said, is one of the cornerstones of the 1990 Act and only with the strongest of justifications would we be able to consider exceptions to this important rule. This is particularly true because of the human rights considerations. It is important to have regard to someone’s personal autonomy when their cells would be unknowingly used for embryo and human admixed embryo research. It has been made very clear that there is concern that without any exceptions there could be a serious adverse impact on scientific research. The research affected could be important research aiming to better understand and treat serious medical conditions. On Report we gave a clear commitment to take away this issue for further consideration. We are grateful for the very helpful discussions on this issue that we have had with noble Lords. My noble friend Lord Darzi wrote a lengthy letter to set out the legal issues and to reiterate our intention to consider this issue further with a view to resolving it in another place. Copies of that letter have been placed in the Library. We are in the process of gathering specific information regarding the concerns raised and of re-examining our position in the light of our findings.

Regarding the use of cell lines, a compelling case has been made. We have outlined in writing to noble Lords that the Government take the view that it will be possible to make an exception to the requirement for express consent, provided that sufficiently stringent safeguards are in place. The details of those safeguards will require significant further consideration and discussion to ensure that research takes place only where to require consent would impose a substantial burden on scientific research, with such research being in the public interest. We will also need to develop a framework through which the safeguards will be introduced. My noble friend Lord Turnberg mentioned the importance of external scrutiny and I am sure that we will be looking at examples such as the patient advisory group that he mentioned.

Regarding the use of a child’s tissue, we agreed that in some circumstances, particularly those where a child is suffering from a terminal illness at a very early age, the current consent requirements in the Bill are not appropriate and should be revised. We are currently examining this issue carefully and we have agreed to take it away for further consideration in the other place. There are good reasons for further consideration of this issue. In particular more detailed consideration is needed to address children who are not competent to consent, on grounds of both age and mental capacity. Further concerns are then raised about all persons, including adults incapacitated throughout their entire life. The changes to the consent system regarding these concerns will require considerable thought to ensure that not only children but all those who require exemption are provided for. Consideration will also need to be given to other pieces of legislation, such as the Mental Capacity Act 2005 and the common law governing children and consent.

I am happy to state clearly once again our commitment to find a way through each of these concerns. We shall take the issue away for further examination and revisit it in the other place. With that reassurance, I hope that the noble Lord will not feel it necessary to press his amendment.

My Lords, in the light of those assurances, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 to 28 not moved.]

29: Schedule 6, page 72, line 26, at end insert—

“The Secretary of State shall within four years of the coming into force of this Schedule, carry out a review of the law and practice concerning the inclusion in the birth certificates of donor conceived persons the fact of such conception.”

The noble Lord said: My Lords, those of us who have followed the argument on whether a birth certificate should record the fact of a donor conception will recognise that this is yet another attempt to try to find a way forward, given that as everyone recognises there are deep divisions of opinion within what might be called the donor conception community—whether as parents or as donor-conceived children.

I have very much in mind the admonition of the noble Baroness, Lady Royall, at the beginning about not repeating the arguments that I advanced—at some length, I fear—on Report. Then I asked that the HFEA should keep the matter under review, and I added that if the HFEA recommended that there should be a change in the law relating to birth certificates in practice, the Government could then make the necessary changes by statutory instrument. Both conditions were criticised by the noble Baroness, who said that the HFEA was not best placed to carry out a review in that area. She said:

“Changes to the birth registration laws would involve amending a number of different Acts and I do not believe that a review of the law in this area would be within the remit of the HFEA”.

She went on to say:

“It is also not clear that this provision is necessarily appropriate to be implemented by secondary legislation”.—[Official Report, 28/1/08; col. 510.]

Anyone reading the amendment will recognise that I have met those two requirements. It will now be the Secretary of State who will carry out the review, and the suggestion that a change in the law might be made by order has been removed. That there needs to be a review from time to time is extremely clear. There is widespread feeling that birth certificates should not connive in a lie. That was considered at some length by the Joint Committee, and we did not like the idea one bit that there should be an element of deliberate deception, as it were, connived at by the authorities.

There are those who feel strongly that the birth certificate should record the facts. My noble friend Lord Ferrers was very eloquent on that subject. However, there is the great difficulty that a large number of the parents of donor-conceived children believe that to make it public at this stage would play to the prejudices of a great many people and harm their children’s prospects in life. But they agreed that opinion might change as people become more and more aware of the capacity of the medical profession to allow parents to create children when it was not possible before and the idea of donor conception might become better understood and more tolerated. That is why it needs to be reviewed.

I am perfectly happy that the review should be carried out by the department. I am not happy that it should rest solely on what the noble Baroness said last time when she assured noble Lords,

“that we will continue to keep under review options about informing donor-conceived people about their conception”.—[Official Report, 28/1/08; col. 511.]

I think by that she meant the birth certificate question.

As I said then, I have been around for long enough to know that departments can keep things under review for an astonishingly long time without actually doing anything. I want to see something in the Bill. I had been led to believe that this amendment might be accepted by the Government, but I have since been led to believe that that might be difficult. I think that the noble Baroness’s heart is in the right place but she is contending with a departmental attitude that is very deeply ingrained. At this stage in her career she is not in a position to change that. I am perhaps anticipating what she will say, but we must have something in the Bill. That must be agreed either in this House or in another place. I beg to move.

My Lords, whatever the Minister’s reply to this amendment, the motives of which I strongly support, I take this opportunity to thank her and the noble Lord, Lord Darzi, for the constructive and helpful way in which they have handled the Bill during its passage through this House, and for willingly agreeing to consider in depth so many of the ideas and proposals put forward in our debates. My thanks extend also to the Bill team, who have devoted much time to advancing the discussions that have taken place outside as well as within the Chamber.

The Bill has been improved in substantive and important ways, and I believe that our debates and the Ministers’ joint efforts have served to clarify a number of difficult questions that the other place will now take forward.

My Lords, I am assuming that the noble Baroness is unlikely to accept the amendment tabled by the noble Lord, Lord Jenkin, but I want to make two points about it. In some ways, I do not support this proposal being in the Bill, but it is crucial, as has been demonstrated throughout the debate, that before we move forward we must have some sort of framework in which to examine the issues and questions about these families. It is interesting that the science may have been debated on the Floor of this House, about which there have been some marginal differences, but the social science has been disagreed with seriously. All I ask is that it should be understood from the start that the review should be looked at in a social science framework, so that at the end some objective assessment can be made, rather than a whole load of opinion about what children and families require to develop appropriately, and what adults need in terms of understanding their genetic inheritance to ensure their health.

My Lords, I am glad to find that I am again on the same side as my noble friend Lord Jenkin of Roding after a small deviation earlier. It is important that something of this kind should be in the Bill. Apart from anything else the government amendments proposed to the law, which have been incorporated in the Bill, will certainly require amendment of the form of the birth certificate. There can be no question about that. Some review of the structure of birth certificates will be necessary before the Bill can be implemented.

I have made the point, so I shall not weary the House by making it again, that there are some cases in which donor conception will become apparent on the birth certificate—not expressly but by implication. For a minority of children, the fact of their donor conception will be recorded on the birth certificate from the time that the Bill is fully implemented. Some degree of review is essential if the Bill is to work. I support the view that this important matter, to which we devoted a lot of attention in the Joint Committee, and for which there was strong feeling from different groups, must be kept under review. I cannot compete with my noble friend’s experience and his knowledge of things lying around departments for a long time, but a little prod arising from the fact that the provision is in the Bill might be helpful.

My Lords, I also support the push of this amendment. Sitting on the pre-scrutiny committee, I found this one of the hardest issues. There were conflicting pulls and it was hard to know where the balance should lie. This was not about faith, beliefs or scientific background. It was a set of clashing considerations over, for example, whether the birth certificate should reflect the biological—that is, genetic—parentage or, as many same-sex couples might wish, the social parentage of a child.

Secondly, where do the child’s wishes come into play as against, possibly, the social parents’ wishes? That child may wish the certificate to reflect his or her social parents. That child may prefer, for whatever reason, the birth certificate to reflect his or her genetic parents. In some societies, where you need a full birth certificate for entry, there could be possible areas of discrimination or stigma that the child might find difficult to handle.

Thirdly, there is the issue of privacy. We all hope that parents will follow best practice and ensure that their children are aware of their origins, how much they have been wanted and so on. Yet some parents will not. I registered my own child at 10 days or whatever, but there was no subsequent evidence to back that up. The registrar took my word for it that I was the mother and that the person I said was the father was the father. That went on the birth certificate. How are you going to police it if a person should, wrongfully, seek to conceal the genetic origins? There is, effectively, a compulsory reporting system but, as far as I am aware, no way of monitoring the information put on that birth certificate—nor perhaps should there be.

Given all of these problems—I do not know what I think about most of them—I would welcome some sense that we can revisit this issue. Where the consensus lies on any of these issues may change over the next few years, as greater openness, frankness, transparency, scientific information and understanding of the ethical issues come to the fore. As a result, we may find that we can come to a view collectively, as a society and as a Parliament, which reflects a consensus that does not currently exist. If for that reason alone, I hope that if my noble friend cannot accept this amendment today, something similar will be introduced in the other place.

My Lords, I too support the amendment of the noble Lord, Lord Jenkin of Roding, not least for the sorts of reasons that the noble Baroness, Lady Hollis, has just advanced. It is true that sometimes birth certificates do not tell the truth. As the noble Lord said earlier, the concern of the Joint Committee—as I understand from reading its report—was the difference between an individual concealing truth and the state “colluding in a deception”, to use the committee’s phrase. The noble Baroness is right; there is a series of complex questions here, some of which we have been unable to resolve during our proceedings. They are questions we should return to. This is a sensible proposal which I hope will be agreed.

As the future unfolds, the changing attitudes that the noble Baroness has rightly identified might well tilt in favour of genetic, biological information truthfully being recorded on a birth certificate—I hope it will. We might also look at producing another document within whatever social arrangements obtain for bringing up a child. A social document can record other questions—perhaps the parents or those bringing up that child want to appear on that document. A social document alongside the birth certificate might be one way forward. I believe that we should not tamper with birth certificates and that they should be a true record of genealogy and lineage. Everyone is entitled to the best possible proof of their origins.

At the fag end of the Bill’s consideration, I remain implacably opposed to many of its provisions. That will come as no surprise to your Lordships’ House, but I too thank the noble Baroness, Lady Royall, and the noble Lord, Lord Darzi, for their unfailing courtesy and patience in dealing with many of the objections that I and others have raised.

My Lords, the noble Baroness, Lady Hollis, is absolutely right when she says the word of the mother or father is taken automatically when they register a birth. I am sure that there will have been cases when wrong information has been put on a birth certificate because it was believed that the mother or father was telling the truth and that it was an accurate record of the parentage of the child being registered.

One can make a strong case that feelings can be hurt by what is on a birth certificate, but once you deviate from the principle that you must put down the truth, you are in all sorts of difficulty. Once we say, to be kind to people and not to hurt their feelings, that we will allow a lie, or, that as the truth is not always told, the truth is not important, then we are really in trouble. It is often hard to face the truth in many instances. But this is an official record, and I support the amendment. Once we deviate, we really are in trouble.

My Lords, I was getting on famously with understanding this amendment until the noble Baroness, Lady Hollis, stood up. She said that, on birth certificates, you might have to consider the parents’ interests and the child’s interests. Surely the whole purpose of a birth certificate is to record the facts. I agree with my noble friend Lady Knight that you cannot get away from the facts. To use an extreme but hypothetical example, in some families things go from father to son to son. That is a biological thing. If a mother has a son who is not the son of the father, does that not cause a hitch? For the certificate to say that the son is the father’s son because that is the social wish of the parents is wrong. I agree with the noble Lord, Lord Alton, that, if necessary, you would have to have two certificates, one creating and recording the biological facts and one creating and recording the social facts. That seems a funny birth certificate because it does not record the birth at all.

My Lords, throughout the course of this Bill, I have undergone a remarkable educational experience. The education has been confined not solely to science, although I now have an understanding of scientific matters I never knew existed, but to the social sciences as well.

Like the noble Lord, Lord Jenkin, I have paid attention to these matters and listened as fully as I can to the different views of the different parties. I congratulate him on turning up with a slightly new amendment; I do not wish to go back over the debates we have already had. Yet we have moved no further forward than was the case in 1990, when the great brains of people like the noble Baroness, Lady Warnock, tried to find an answer to this question. We simply have not done so. While many people will welcome the amendment as a force behind the department which will make it consider the issue, it is important to remember that for some others it is something to fear, something they will not want to see.

I state again that, although many of us share very deep concern that people should know their genetic identity, we are yet to be convinced that mandatory inclusion of information on birth certificates is the most effective way to ensure that that information ends up with those children. My concern is that the amendment attempts to address the issue in one way only, when that may not be the most effective way. I hope that, if there is any review, it is a very expansive review about the need of children to know who they are and how they get to find out.

Finally, I, too, want to place on record our thanks from these Benches to the Ministers—the noble Lord, Lord Darzi, has got a tremendous first innings under his belt—to the Bill team, who have been exceptionally generous with their time, and to the scientific noble Lords for giving us all some splendid tutorials along the way. To those who disagreed with what I had to say, I found their contributions remarkably helpful at times.

My Lords, these are indeed complex issues. There has been considerable debate during the passage of the Bill on the issue of recording the fact of donor conception on birth certificates. As I said during Report, the Government fully recognise the importance of donor-conceived children being aware of their origins and we have a policy of openness in that area. We are taking a number of steps in this respect.

The Department of Health is working closely with the Donor Conception Network to support projects to encourage telling donor-conceived children about the details of their conception. We are funding the “Telling and Talking” project, which supports parents who have donor-conceived children to tell them about their conception. We are also funding a second project, which will be working with prospective parents hoping to conceive using donor gametes. The House earlier accepted an amendment that will require a licence condition to be placed on clinics to ensure that people being treated with donor gametes or embryos are provided with information about the importance of telling their child from an early age that they were donor conceived.

However, I fully recognise the point the noble Lord, Lord Jenkin, makes about the need to review the position on the birth certificates of donor-conceived people. It is clear that many noble Lords have given a lot of thought to the needs of donor-conceived people, the importance of knowledge about their genetic history, and the implications of annotating birth certificates in some way. We need to keep in mind the options and consider how people’s views on those options may change. Assessing the impact of the Donor Conception Network’s projects to educate patients and parents about the need to tell will play a part in that.

I can make a firm commitment that the Government will carry out a review of practices in informing donor-conceived children of the fact of their donor conception and whether there is a need for a change in the law to best ensure that donor-conceived children are informed of their donor conception. We will do this within the timeframe suggested by the amendment tabled by the noble Lord, Lord Jenkin.

The noble Baroness, Lady Howarth, is right to speak of the need for us to be clear about the aims and remit of the review. We must take care. We cannot accept the amendment as tabled, as it refers to the law and practice in this area, but there is no law in place to review in relation to the annotation of birth certificates. I can commit to a review. Placing the provision in the Bill still poses problems, but I understand the reasoning behind the amendment and the strength of feeling in your Lordships’ House. I therefore invite the noble Lord to withdraw the amendment and accept the firm commitment I am making, and assure him that I will continue discussions with him and others as the Bill continues its passage in the other place.

Before I conclude, I also want to place on record my thanks to my noble friend Lord Darzi and to all Members of the House who have taken part in these extraordinary debates on such scientific and ethical issues. It has been the most amazing education and a huge privilege to have taken part in discussion on the Bill. I am also very grateful to the Bill team. The Bill has benefited greatly from the wisdom that your Lordships have imparted in debates in this House.

My Lords, I, too, begin by adding my thanks to the noble Baroness and to the noble Lord, Lord Darzi, for the way in which they have dealt with the Bill. The noble Lord, Lord Darzi, is familiar with many of the technicalities, but the way in which the noble Baroness, Lady Royall, has coped with some of the noble and scientific Lords has been remarkable. I congratulate them.

On the amendment, the noble Baroness went almost all the way. I am going to disclose one thing that she told me in her telephone conversation this afternoon: that she would work to get something into the Bill in another place. That was not repeated on the Floor of the House. If she could, just by nodding, give me her assurance that, as well as discussing it with us, as she has offered, she will discuss it with her noble friends in another place—

No, my Lords. I meant the noble Baroness’s right honourable and honourable friends—I am happy to stand corrected—in another place. She is nodding very vigorously; I shall make sure that Hansard records that. On that basis, I think that we have reached the end of the Bill and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

An amendment (privilege) made.

My Lords, I beg to move that this Bill do now pass. I just want to say a few words of thanks to all noble Lords. This has been an amazing experience for me, I can tell you. I thank you all for your patience, your support, the scientific support, the legal support, the ethical support and the moral support. I have never been through an experience like this before and it has certainly been a pleasure. I also make a specific point of thanking my noble friend Lady Royall, who has been absolutely brilliant in taking me through this interesting journey. I never thought that I would take a Bill like this through but, more importantly, resuscitate a colleague through it. I am obviously delighted to see that the noble Lord, Lord Brennan, is doing very well. Thank you all for the privilege of this experience.

Moved, That the Bill do now pass.—(Lord Darzi of Denham.)

On Question, Bill passed, and sent to the Commons.

Climate Change Bill [HL]

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

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

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]

Clause 61 [Territorial scope of provisions relating to greenhouse gas emissions]:

[Amendments Nos. 185 and 186 not moved.]

Clause 61 agreed to.

187: Before Clause 62, insert the following new Clause—

“Secondary legislation

No secondary legislation, including any order or regulations, may be made under this Act unless it is necessary for the proper operation of the Act and is compatible with the principal aim of the Act.”

The noble Lord said: The first amendment in the group places a prohibition on making secondary legislation unless it is consistent with the principal aim of the Act. It was on the very first day of this Committee that we debated whether to include a principal aim in the Bill. I do not intend to rehash the arguments made then, but I would like to treat the amendment as an opportunity to discuss a general problem with the Bill, as we look forward to Report.

The order-making powers in the Bill are too extensive. As it stands, the Secretary of State can change virtually all the targets, budgets and training schemes by order. Likewise, as we heard in the waste management services section, there is imprecision and power beyond the specific elements of addressing climate change.

I do not necessarily suspect the Government of planting Trojan horses in a cynical attempt to increase the power of the Secretary of State. However, we feel that it is important that the amendment be included to ensure that this Bill—which is very much just a framework—will not be interpreted in a way that is not related to or in keeping with its primary policy purpose of stopping climate change.

An example of an unnecessary power given to the Secretary of State is the subject of the second amendment in this group, proposed by the noble Lords, Lord Teverson and Lord Redesdale, and which also carries our names. The Secretary of State should not select the time at which this Bill is enacted. This Bill should come into force on the day that it is passed. I beg to move.

I generally agree with the noble Lord, Lord Taylor, in terms of his amendment and the very great issues that any secondary legislation could cover in a Bill that is as wide as this is written. As we have seen, this primary legislation has introduced provision on renewable transport fuels and waste disposal, which we were happy to debate most of the last Committee day. We also believe that this is an important area.

My own Amendment No. 188 refers to the climate change committee. This area should come into force when the Bill is passed. I cannot see the Government or the Minister objecting to that. They are keen, as we all are, for this Bill to move on—not just to reach the statute book, but to be implemented so that we can all get on and save the planet. The most appropriate date for that important work to commence would be on the day that the Bill is passed.

Referring to the climate change committee, I was delighted to read Defra’s press release about the nomination and appointment—subject to the Bill being passed or however these things work—of our colleague, the noble Lord, Lord Turner. That is an excellent start in showing how important that committee is and how independent it needs to be.

I hope I can offer some reassurance to noble Lords with regard to this possibly very short debate. I understand the concern expressed by the noble Lord, Lord Taylor. I asked the Bill team to go through the order-making powers and have also had a look myself to try to get a feel for how it looks when they are put together.

A theme has been running through our debates in Committee. In fact, my noble friend Lord Rooker has agreed to consider a number of questions on transparency and order-making issues. There is an intention to write to interested Peers and opposition spokespeople on a number of those before Report.

Amendment No. 187 would specifically prevent the Government bringing forward any secondary legislation which was not strictly necessary for the proper operation of the Act or not compatible with the two-degree goal, which we debated earlier in Committee. I appreciate the spirit behind the noble Lord’s amendment, but this would have a significant impact on the Government’s ability to meet the targets and budgets set under the Bill.

The two tests in Amendment No. 187 would set the bar extremely high. I understand that the amendments are probing but will take a moment to go through why they would set the bar so high. The requirement for secondary legislation to be necessary for the Act’s operation could have significant consequences. For instance, as the Bill already has a 2050 target, any regulations amending it are not strictly necessary for the Bill’s operation. This amendment would prevent the 2050 target being amended. For example, new trading schemes, as enabled by Part 3, are also not strictly necessary for its operation. Therefore, this amendment would also prevent the Government introducing any trading schemes to reduce UK emissions and help us meet our targets. I understand that the amendment is probing at a wider concern, so I will not labour that.

Amendment No. 188 would commence Part 2 on the day that the Act is passed. It would mean that the Committee on Climate Change becomes a statutory body on that date. I understand that noble Lords want to see the committee operational as soon as possible. However, there are practical reasons why the Government have included the provision to set the date in the Bill. As your Lordships will be aware, we do not often know in advance the exact date on which a Bill will be granted Royal Assent. That means that the establishment of such an important body could come, relatively speaking, as a surprise. We would not want that to happen.

There are very real considerations which require us to be able to plan this, so that it happens not only quickly but in an orderly and well managed way. For example, the committee’s staff will be its backbone and it is important that we make it convenient for both staff and the body alike to have advance notice of when the body will be legally established. That will help provide greater certainty as to, for example, the terms of their employment. As noble Lords will also understand, it is more administratively convenient if a body comes into existence on a known date—ideally, at the start of a new quarter, but, at the very least, the first of the month.

However, we recognise the demands for greater certainty about when the committee will be vested and the desire for it be at the earliest opportunity. I therefore reassure the Committee that it is our intention to commence Part 2 at the earliest practicable date, and no later than three months after we receive Royal Assent. The date will be decided following consultation with the committee’s chair-designate.

I am happy to put this commitment on record for the Committee and hope, with this reassurance—and my communication of the information that my noble friend Lord Rooker will be writing to noble Lords who have participated in Committee—that the noble Lord will consider withdrawing his amendment.

I would like to comment on that briefly, before the noble Lord, Lord Taylor, intervenes. I was terribly impressed by all that until the Minister said three months. I accept entirely the shortcomings of my own amendments in terms of the day of Royal Assent, which we may not be able to tie up exactly. However, I would have thought that the first day of the month, or within the month, was what we should expect at the very least. The reassurance is excellent, but I find three months excessive.

I echo those words. I hope that the Minister will listen carefully to what the noble Lord, Lord Teverson, has said. It seems remarkable. We know that so much has got to be done by the climate change committee so early, because we are vesting all sorts of responsibilities in it. The debates in Committee have given a strong argument for it being empowered to advise on setting targets and even, as we have proposed, setting targets itself. It is a mistake to have a delay before its authority is fully vested, and I hope that the contributions made in this short debate will be taken into account when the letter is penned.

I do not wholly take the Minister’s argument that accepting our amendments would mean that the orders changing the 2050 target could not be implemented. After all, the purpose of the Bill is to reduce climate change. Setting targets is an instrument for achieving that objective, but the purpose of the Bill is made quite clear in Clause 1. There is therefore no contradiction. I have not examined this from a legal point of view, but my feeling is that there cannot be a contradiction. Having said all that, I was very reassured by what the Minister said about how our debates in Committee have impressed on her, on the Government and on the noble Lord, Lord Rooker, that it is necessary at least to try to reconcile the need to empower the Secretary of State to issue orders with the need to ensure that the powers and authority of Parliament are also recognised. With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 62 to 66 agreed to.

Clause 67 [Meaning of “national authority”]:

187A: Clause 67, page 28, line 31, at end insert “and acting in agreement”

The noble Lord said: The Committee will be relieved to hear that this is a probing amendment. I was led to table it when I read Schedule 1, which of course I read before I got to the end of the Bill because it comes up much earlier and must be read in context. The opening line of the schedule alerted me to the need to have this discussion. It says:

“The Committee shall consist of … a person appointed by the national authorities”.

As the noble Lord, Lord Turner of Ecchinswell, is in his place, I should say that I too am very glad to welcome him to that job, even though—I hope he will not blush when I say this—I was somewhat surprised to see in the House Magazine that a job which I saw described in another press release as the third most important job in the country, after Prime Minister and Chancellor of the Exchequer, is apparently assumed to take only one day a week. There is a little inconsistency there, which the Minister may be able to explain.

Anyway, we need to discuss a little the meaning of the “national authorities”. This appears only in Schedule 1 and in Clause 67, which gives the meaning of “national authority” in definitions. Clause 67(1) states:

“In this Act ‘national authority’ means”—

which is fine—

“the Secretary of State … the Scottish Ministers … the Welsh Ministers”,


“the relevant Northern Ireland department”,

which is interesting.

Subsection (2), however, says:

“Functions conferred or imposed by this Act on ‘the national authorities’ are to be exercised by all of them jointly”.

That, too, is simple enough, and I am glad that it works, except that the relationship is quite complicated. There is in this appointing body one Secretary of State but 12 Scottish Ministers and 11 Welsh Ministers. Indeed, I am not quite sure how many people there are if you include one “relevant Northern Ireland department”—let us assume that it is one.

The real question is how this works. We know that it has worked for the chairman, but the subsection says that the functions will,

“be exercised by all of them jointly”.

I think that the people who wrote that into the Bill simply had not thought about the wording, because you will never get all those people together to work jointly. Even if you put in a conference call, someone will not be able to be at the right place at the right time to take part in the discussion.

Finally, what happens if someone disagrees? Is there a mechanism for determining whether one Secretary of State in the United Kingdom Government equals 12 Scottish Ministers who might disagree with him? Are we saying that what we really require is a majority of the Ministers in the devolved institutions to accept, and that, if they do, that is all right? What does,

“be exercised by all of them jointly”,

mean? I tabled this little amendment because we need to discuss this, particularly because we need a means of dealing with disagreement if difficulties arise in the future—this job goes on when substitutes are appointed to the committee at some point in the future. If you do not think about this when you write the original agreement, by the time the original agreement is in place and in law, it is too late to change it. I beg to move.