Lords Sitting of 6 February 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.

Poland and Hungary: Assistance
Baroness Strange Baroness Strange asked Her Majesty's Government:
What assistance they are giving to help reforms in Poland and Hungary.
The Minister of State, Foreign and Commonwealth Office (Lord Brabazon of Tara): My Lords, Know-how funds for Poland and Hungary have been created to transfer the skills needed to run free market economies and democratic societies. We have given 100 million dollars to the international stabilisation fund to support Poland's IMF-approved economic reform programme. We stand ready to help support a firm economic reform programme for Hungary when one is agreed with the IMF.
The UK is also playing a leading part in the European Community programme which in 1990 will disperse £210 million in Poland and Hungary, on top of the food supplies worth £23 million for Poland approved last month.
Baroness Strange: My Lords, I thank my noble friend the Minister for his extremely helpful and encouraging reply. My noble friend Lady Cox initiated a debate on this subject on 11th December on her return from Poland. She spoke of the great lack of food and medical supplies there. Will my noble friend confirm that medical supplies will be included in the European aid package?
Lord Brabazon of Tara: Yes, my Lords. One of the matters that the EC is concentrating on is the supply of medical assistance. The Commission held a meeting of the group of 24 donor countries on 26th January to discuss further medical assistance. The United Kingdom emphasised the urgent need for that to be brought forward.
Lord Lloyd of Kilgerran: My Lords, is the Minister aware that the countries referred to in the Question are inviting help for the supply of know-how, both technical and administrative, in order to help their small companies? What steps are the Government taking to assist in that direction?
Lord Brabazon of Tara: My Lords, we have been providing precisely that kind of help to Poland particularly through the know-how fund. There are currently a large number of projects that are in hand or are to be implemented or completed. I shall be happy to send the noble Lord a list of those projects and place a copy in the Library.
Lord Mellish: My Lords, while the change of the Polish people to democracy is particularly welcome to all of us, that democracy cannot last unless they feed the stomachs of their own people. If the Government want democracy to succeed, as we all do, what are they doing to ensure that countries such as Poland get out of the awful economic mire that the wretched communists have left them in?
Lord Brabazon of Tara: My Lords, food aid has featured highly on the list of priorities. The EC has already contributed 100 million ecus in the first tranche and last month announced a further £23 million of food aid. In addition to that, Community project assistance for Poland and Hungary worth 300 million ecus has been announced and the United Kingdom has also provided a food project worth £15 million.
Lord Cledwyn of Penrhos: My Lords, while we appreciate the unilateral assistance which Her Majesty's Government are giving to these two countries, is it not the case that the problem encompasses the massive economic problems not only of the two countries referred to but also of all the other East European countries including the Soviet Union? Should not the policies of this country and our allies be to ensure that at this critical point in history we should be doing everything we can to establish stable democratic governments in all those East European countries as the consequences of destabilisation and Balkanisation are too terrible to contemplate? The challenge is great but the opportunities are also great. In those circumstances will Her Majesty's Government consider giving a lead in calling an international economic conference to consider whether the problems can be resolved on a global scale?
Lord Brabazon of Tara: My Lords, the noble Lord makes a good point and I shall certainly draw it to the attention of my right honourable friend. However, we are helping on an international basis, principally through the group of 24, whose efforts are being co-ordinated by the European Commission. That is achieving quite good practical results in the short term.
Lord Orr-Ewing: My Lords, will my noble friend consider extending the terms of reference of the know-how fund so that it includes references to deal with Poland's desperate environmental problems at the present time?
Lord Brabazon of Tara: My Lords, certainly. So far as concerns environmental problems, we and our European partners have set aside between £35 million and £50 million of the EC's project assistance for Poland and Hungary this year for environmental assistance.
Baroness Ryder of Warsaw: My Lords, I work frequently in Poland and so far have not heard of or seen any special funds that have been allocated specifically to the health service there. Is the Minister aware that the Polish health service is in chaos? Conditions are desperate and far worse than they

697
were 25 years ago. It is known that 120 hospitals started by the Poles are incomplete. In addition, the foundation which I represent requires a minimum of £12 million to £14 million to build further homes and hospitals for all age groups and disabilities and the thousands of sick, destitute and dying, particularly those with cancer and leukaemia and many other disabilities and diseases. Can the Minister therefore say what funds have been allocated to the health service in Poland, because we have been told that assistance is to be provided from this fund or that fund or the know-how fund, but neither I nor the Health Minister in Poland can pin it down?
Lord Brabazon of Tara: My Lords, I am sure that all noble Lords admire the work that the noble Baroness does in Poland. I shall certainly bear in mind very carefully what she has said today. I have already referred to assistance with medical supplies, but I shall take account of what she said.
Lord Taylor of Gryfe: My Lords, does the Minister agree that Europe was saved from chaos at the end of the war by the imaginative scheme of the Marshall Plan and that this country contributed 1 per cent. of its GDP to assist European countries less fortunate than ourselves? Can he give us any hope that a similar imaginative plan will be agreed between us and our allies in order to take advantage of the tremendous change which is taking place in Eastern Europe?
Lord Brabazon of Tara: My Lords, I hope that I can give the noble Lord some encouragement. I have already referred to the group of 24 countries which have declared their willingness to respond to the needs of other countries in Eastern Europe as well as Poland and Hungary. We have already announced that our know-how fund will be extended to other countries in Eastern Europe as and when they make a firm commitment to democracy.
Lord Kennet: My Lords, will the Minister take this opportunity to comment on a story in this morning's newspapers to the effect that Conservative Members of the European Parliament want the funds for building up democracy in Eastern Europe to be sent exclusively to parties of the centre right? Is the story true? If it is true, will the Government dissociate themselves from that intention in favour of sending funds impartially towards the construction of democracy itself, which comes first?
Lord Brabazon of Tara: My Lords, I have not seen the story to which the noble Lord refers. The know-how fund is directed towards politicians of all kinds. Groups of Hungarian and Polish politicians have already participated in successful seminars on the UK parliamentary system organised by the Great Britain-East Europe Centre.
Baroness Elles: My Lords, is the noble Lord aware that the European Conservative group joined with others in setting up a fund to help all parties in
698
Hungary and Poland to set up democratic bodies and that the Socialist group in the European Parliament voted against the proposal?
Lord Brabazon of Tara: My Lords, noble Lords will be grateful for the information which my noble friend has provided on the subject.
Lord Molloy: My Lords, in addition to aid, will the Government also consider trade, particularly in the case of Poland? In the light of discussions which some of us had with Lech Walesa, the great Polish trade unionist whose organisation has played such a vital role in these events, would it not be sensible for our Government to invite the Polish equivalent of the CBI and the TUC to increase trade, in addition to contributing in the form of aid?
Lord Brabazon of Tara: My Lords, trade is principally a subject for the judgment of commercial companies. It is for them to decide whether to invest in Poland. The know-how fund to which I have already referred gives assistance to people such as those to whom the noble Lord referred to learn how to operate in a market economy.
Viscount St. Davids: My Lords, will the Minister ensure that the aid is spread among small companies, since that is not only the most economic way of dealing with the problem but also at this stage of the development of Eastern Europe any company of value is likely to be small?
Lord Brabazon of Tara: My Lords, the aid is not given to individual companies. The know-how fund is aimed at teaching people how to run companies.
Lord Whaddon: My Lords, is the noble Lord aware that the vast number of technical and commercial problems faced by Polish industry and commerce can only be solved by a huge range of detailed contacts between companies there and companies here? Is he aware that Germany in particular is outstripping by a long way the contacts gained by British industry? In view of the importance of joint enterprise in the solution of the problems, will the Government undertake a widespread publicity campaign to make British industry aware of the opportunities?
Lord Brabazon of Tara: My Lords, I am not sure that it is for the Government to make British industry aware of the opportunities. British industry is obviously well aware of the changes. No one could not be aware of what is going on in Eastern Europe. I am sure that companies will take advantage of the opportunities when they are presented to them.

Education: Pupil Assessment
2.50 p.m.
Baroness Seear Baroness Seear asked Her Majesty's Government:
What action they are taking to avoid potential conflict between the requirements of the General Certificate of Secondary Education (GCSE) and the requirements of the national curriculum.
Baroness Blatch: My Lords, there is to be a single framework of assessment for pupils at the age of 16 whereby pupils will be assessed within 10 levels of achievement on the national curriculum scale. The main form of assessment will be the GCSE and pupils will be awarded a GCSE certificate if they achieve level 4 or better. GCSEs will be available in single subjects and also in combinations of subjects. The Schools Examinations and Assessment Council is developing revised GCSE national criteria embodying the statutory attainment targets and programmes of study for the foundation subjects.
Baroness Seear: My Lords, I thank the noble Baroness for that interesting reply. May we interpret it as meaning that there will be greater flexibility in the teaching available to youngsters between the ages of 14 and 16?
Baroness Blatch: My Lords, the noble Baroness has picked up a concern expressed by all our secondary schools. That was the single most common concern that has come back from the secondary schools. I am happy to say that my right honourable friend the Secretary of State responded positively to that concern in his speech to the Society of Education Officers on 25th January. He has called for a broad and balanced curriculum, flexibility to meet the needs of all children from the most able to the least able and —another important feature—continuity between stages of education —primary, secondary, further and higher education.
Lord Taylor of Blackburn: My Lords, how does the Minister's reply this afternoon compare with the report of Her Majesty's Inspector of Schools which was published yesterday and in which the inspector was not happy about the way in which things are going at present?
Baroness Blatch: My Lords, I do not know about the report. I have not seen it, but it has probably not kept up with the pace of change. My right honourable friend the Secretary of State intends to amend the 1989 information regulations to introduce the flexibility called for by teachers with regard to what is known in the jargon as Key Stage 4 for all children aged between 14 and 16. I am convinced that, if the noble Lord reads the speech, which is deposited in the Library, he will be heartened by the detail in which it sets out the flexibility that will apply to children of all abilities.
Lord Gainford: My Lords, will that flexibility allow pupils to drop subjects before the fourth year of secondary education?
Baroness Blatch: My Lords, my right honourable friend the Secretary of State is sticking to the original suggestion that core subjects, plus technology and modern languages, will have to be studied to the end of Key Stage 4. However, for the brightest pupils, there will be flexibility to substitute subjects during that key stage and for the least able there will also be flexibility to introduce other subjects. To that end, BTEC, City and Guilds and Royal Society of Arts qualifications will also be considered to dovetail into the attainment scale.
Baroness David: My Lords, is the Minister aware that we are pleased that there will be greater flexibility, as we had all expected? We gather that there is a certain amount of trouble in getting teachers to agree to do all the assessment and examining that will be necessary in all key stages and that they will be thoroughly exhausted by the time they reach Key Stage 4. Perhaps I may say ——
Noble Lords: No!
Baroness David: My Lords, perhaps I may ask that, when the noble Baroness has had time to read the Chief Inspector's report, she will add her voice to the need for greater flexibility still and for a little less assessment which takes up the time of teachers who are much needed for other purposes.
Baroness Blatch: My Lords, I take the noble Baroness's point about the need for flexibility. That is important, but it is also important that we do not return to the bad old days of so much flexibility that nothing is studied in any depth. The balance between core foundation subjects and flexibility with the non-core foundation subjects is problably the best bet for our young children.
Lord Peston: My Lords, as I indicated to the noble Baroness, the document to which reference was made is freely available even to Ministers. I assure her that it makes extremely interesting reading.
Noble Lords: Question!
Lord Peston: My Lords, I shall get to the question; there is no problem there at all. Is the noble Baroness aware that, in referring to the speech made by her right honourable friend the Secretary of State, the Times Educational Supplement stated that, in the eyes of the head teachers who will bear the brunt of managing the package of measures that he announced last week to a stunned Society of Education Officers, he failed on all three counts dealing with overcrowding, fragmentation and certification? Is it not a serious state of affairs when a distinguished journal such as the Times Educational Supplement believes that it should say that kind of thing about the Secretary of State's speech?
Baroness Blatch: My Lords, I hope that the noble Lord will forgive me for not yet having read that document. The House sat until about three this morning, I was in my bed at 4 a.m., on the road again at quarter to eight and have been at meetings ever since.
Noble Lords: Hear, hear!
Baroness Blatch: My Lords, I have however read in detail the whole speech made by my right honourable friend the Secretary of State on 25th January in which he dealt in great detail with the overcrowding, fragmentation and certification issues. I should prefer to return to that question when the noble Lord has read the speech in the same detail as I have done.

Planning Permission: Statutory Obligations
2.55 p.m.
Baroness Faithfull Baroness Faithfull asked Her Majesty's Government:
Whether, in the planning permission process, due regard is given to the needs of the handicapped and the elderly; and, if so, why it is that the new Oxford railway station will be as inconvenient as the old, and Oxford bus station is inaccessible to taxis.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, developers are statutorily obliged to provide suitable access for disabled people to a wide range of buildings used by the public. Local authorities have a duty, when granting planning permission for such buildings, to draw attention to those statutory obligations. The problems mentioned in my noble friend's Question are matters for the local authority.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for that reply, which I expected. However, does he agree that it is reprehensible that the central bus station in Oxford City, which was convenient albeit rather old, has been replaced by a new bus station with no access to taxis? People arriving on long-distance buses from London Airport and elsewhere in England cannot find a taxi when they arrive at the bus station. Surely that matter should have been dealt with at the early stages of planning. As the Minister will know, the old station at Oxford has been replaced by a new station ——
Noble Lords: Question!
Baroness Faithfull:——with no access for the elderly and handicapped other than a bridge and steps. Does he agree that that point should also have been dealt with, and that Network SouthEast should have taken note of the Department of Transport's advice?
Lord Hesketh: My Lords, I am sure that all noble Lords would be extremely upset if I came to the Dispatch Box and announced that Marsham Street intended to take over the local planning process. Those problems should have been resolved by the local planning authority. That is its duty, one which it was elected to undertake.
Lord Graham of Edmonton: My Lords, although the Minister is in effect washing his hands of his responsibility and says that this matter is the responsibility of the local authority, will he say what monitoring steps the department takes to ensure that local authorities comply with the law? The thrust of the Question is the sad plight of the chronically sick and disabled. What steps have the Government taken to ensure that every local authority complies fully with its duty and responsibility to the chronically sick and disabled, many of whom are silent when it conies to making known their needs?
Lord Hesketh: My Lords, as the noble Lord, Lord Graham, is no doubt well aware, Section 106 of the
702
Transport Act 1985 lays down the criteria to answer his point. However, I should draw his attention to the fact that Wandsworth, a borough which is not often in his good books, supplied 90 per cent. of the cost at Clapham Junction of providing the answer requested by those who need better facilities at Oxford —an answer which has not been provided by a Socialist-led council.

Medium Term Financial Strategy
2.58 p.m.
Lord Donoughue Lord Donoughue asked Her Majesty's Government:
Whether they still have a medium term financial strategy.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): Yes, my Lords.
Lord Donoughue: My Lords, I thank the Minister for that intriguing reply. Since the latest in the long line of monetary benchmarks announced by the Government —MO —is proving unaccommodating and running well above the target range set in the last Budget, and, since inflation, both the RIP and the underlying rate which the Government tend to prefer are running well ahead of Treasury forecasts, does the Minister agree that an honest and logical application of the medium term financial strategy—should the new Chancellor be able to find it —would involve higher interest rates and higher taxation, or both?
Lord Henley: My Lords, no. My right honourable friend has made it clear that interest rates will remain as high as is necessary for as long as is necessary to achieve the required effect in bringing down inflation.
Lord Hailsham of Saint Marylebone: My Lords, is it not possible that the noble Lord, Lord Donoughue, meant RPI and not RIP as he said?
Lord Henley: My Lords, I think that my noble and learned friend is correct.
Lord Bruce of Donington: My Lords, is the noble Lord aware that there exists an impression, which is not confined entirely to this side of the House, that the Government are far less concerned with the medium term financial strategy than they are with the medium term election strategy?
Lord Henley: My Lords, I think that that concern is more appropriate for the other side of the House than for my side. We remain committed to the objectives of the medium term financial strategy and, as I stated, interest rates will remain as high as is necessary for as long as is necessary.
Lord Ezra: My Lords, as we are on the subject of medium term strategies, are the Government contemplating the introducton of a medium term

703
industrial strategy, bearing in mind the need to widen our industrial base and make it more efficient so that we can compete more effectively when the enlarged European market comes into operation?
Lord Henley: My Lords, that question goes very wide of the Question on the Order Paper. I repeat: bringing down inflation is the Government's top priority.
Lord Jay: My Lords, will the noble Lord explain why until recently we were told that we were enjoying an economic miracle but we are now told that things are so bad that we must have 15 per cent. interest rates indefinitely?
Lord Henley: My Lords, we do not have to have interest rates at 15 per cent. indefinitely. I said that interest rates will remain as high as is necessary for as long as is necessary to achieve the required effect in bringing down inflation.
Lord Stoddart of Swindon: My Lords, the noble Lord did not tell us exactly what the medium term financial strategy was. Does he agree that the medium term financial strategy —as it appears to us —means higher interest rates, higher prices and lower production? Is not that to be the effect of the medium term financial strategy?
Lord Henley: No, my Lords. Perhaps I may quote from the Financial Statement and Budget Report of 1989–90, published last March:
"Since its inception in 1980, the MTFS has provided a nominal framework within which the Government pursues its objective of bringing down the rate of inflation".
Lord Williams of Elvel: My Lords, does the noble Lord accept that my noble friend Lord Donoughue was right when he said that the Government should declare RIP to the medium term financial strategy? In fact, it has been abandoned by the Government. There is no medium term financial strategy, despite what they say. Will the noble Lord come clean and admit that that is the Government's position?
Lord Henley: My Lords, I thought that I had made myself perfectly clear. The objectives of the medium term financial strategy and the central role of monetary policy in reducing inflation remained unchanged throughout the 1980s.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Ferrers will, with the leave of the House, repeat a Statement to be made in another place on criminal justice proposals.
It may also be for the convenience of the House if I announce that the Committee stage of the Human Fertilisation and Embryology Bill will be adjourned at about 7.30 p.m. for about an hour and that during that adjournment the Second Reading of the Chlorofluorocarbons (Control) Bill will be taken.

Criminal Justice (International Co-operation) Bill [H.L.]
3.3 p.m.
Report received.
Clause 4 [United Kingdom evidence for use overseas]:
The Minister of State, Home Office (Earl Ferrers)The Minister of State, Home Office (Earl Ferrers) moved Amendment No. 1:
Page 4, line 17, after ("State") insert ("or, if the evidence is to be obtained in Scotland, the Lord Advocate").
The noble Earl said: My Lords, if it is neither an impertinence nor presumptuous for me to think so, I believe that it may be for the convenience of your Lordships' House if, when moving this amendment, I speak also to Amendments Nos. 4 to 19 inclusive. Those amendments in my name are all drafting amendments.
They bring the Scottish law into line with the English law as is proposed in the Bill. They do not at all alter the substance of the Bill. If your Lordships are happy with that explanation, I propose to move en bloc Amendments Nos. 4 to 19 when we come to them. Should any of your Lordships wish for an explanation of any one of the amendments, I should be happy to do my best to give it. I beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 4, line 21, leave out ("and").
The noble Lord said: My Lords, this amendment repeats an amendment which appeared on the Marshalled List at Committee stage. Perhaps I may briefly tell the House the purpose of it.
I believe that it is the wish of both sides of the House to ensure that the proper and reputable elements of the City are protected. Bankers have relied for their custom on their reputation for confidentiality in the relationship of banker and customer. The Bill enables a convention to be entered into and it is a convention that has a very justifiable origin. The Bill enables us to sign a convention which allows the United Kingdom in Europe to have mutuality of co-operation and help in regard to criminal offences. With that objective nobody would want to quarrel, certainly nobody on these Benches.
However, by way of a protocol there is a provision which enables a foreign government to require our Government, and in turn for us to require a banker, to deal with what is termed by that government a criminal offence relating to fiscal matters. In our country there are many fiscal matters which do not enter into the criminal realm. However, other countries, quite properly from their own point of view, have a criminal system which deals with fiscal affairs generally. This situation requires a provision for mutual criminality (if I may use that phrase) or a mutual criminal law situation.
If there were not that mutual criminal law situation, it would mean that the country which has fiscal matters as part of its criminal law would be

705
able to ask —in fact, demand —that our bankers should divulge various pieces of information to the demanding country. One imagines that that information would naturally include copies of bank statements.
Your Lordships may think that it would be an odd situation if indeed it were the position that a bank in the United Kingdom should not be obliged to reveal such information to our own authorities but would have to do so in the case of a foreign customer. Noble Lords may agree that it is hardly likely to induce foreign customers to deposit money with our banks if those banks and their accounts are to be subject to the demands which are open to a foreign government by virtue of our entry into this convention and protocol.
When I moved this amendment at Committee stage the noble Earl, Lord Selkirk, was kind enough to support me, and the noble Lord, Lord Monson, rose in my defence, if that is the appropriate phrase to use. The noble Lord, Lord Harris of Greenwich, asked the Minister a question which I paraphrase, but noble Lords may take it for granted that it is accurate. He said, "Is it a fact and do I understand you correctly to mean that we would not be able to sign the protocol and the convention if we were to agree to this amendment?"
Anyone who knows the noble Earl as I have the fortune to do will know perfectly well that if there were any misunderstanding as a result of his reply to that question it would have been inadvertent or as a result of a lack of briefing. However, the noble Earl said in very clear terms, "Yes, that is the position". Again the noble Earl did not say —and I use precisely the same phrase; it must have been inadvertent —what the position was with regard to other countries that had signed the convention and had dealt with the protocol.
The position is this. Eight countries have signed. Of those eight, four have made a reservation in the terms of this amendment; namely, that they will not agree it in regard to fiscal matters. There has been no difficulty. I know that the Minister will agree that I dealt with his replies on the last occasion to the amendment with the same degree of courtesy and understanding that he would have accorded to me had the position been reversed, as it could very easily have been. Had I been in that position I too might have been misled. However, I do not wish to be misled now. I therefore advocate this amendment to the House. It has the full approval of the British Bankers Association. Indeed, it is their plea that your Lordships' House should agree the amendment. It has the full approval of the Law Society. Your Lordships will now know that one half of the countries signing the convention have done exactly what I ask your Lordships to do in this amendment.
Noble Lords may wish to know the names of the eight countries. They are as follows: Denmark, Greece, Italy, Austria, Iceland, Norway, Sweden and the Netherlands. The four countries which have said that they will not agree to the fiscal provisions in the same way that I have asked for in this amendment are Austria, Iceland, Norway and Sweden. I beg to move.
The Earl of Selkirk: My Lords, I am very glad that the noble Lord, Lord Mishcon, has raised the matter again because it is a matter of first-class principle. We are going into a Common Market. How far do we take the rules? Do we take them to a degree that will injure our activities, in particular our financial activities, in this country? That is what the noble Lord has said. I know that he is backed by the bankers. They are concerned that matters of high commerce should for quite irrelevant reasons become known to other countries.
I believe that we have to draw the line there and to say that that is not necessary. It is quite clear that other countries have quite willingly signed the protocol with the reservation such as we would make. My noble friend objected to accepting the proposal before. He stated, with that reservation, that it would make it impossible for us to agree to what was laid down. It is quite evident that that is not the case. In those circumstances I ask the noble Earl to accept the principle.
Lord Harris of Greenwich: My Lords, I should be very sorry indeed if the question that I asked at Committee stage were to get the noble Earl, Lord Ferrers, into any trouble. Although I understand the reasons put forward by the noble Lord, Lord Mishcon, if he and other noble Lords will look at col. 882 of the Official Report at Committee stage he will find that the noble Earl made the position absolutely clear. He stated:
"In effect, this means that acceptance of the amendments would, since they impose a dual criminality requirement as a prerequisite to the grant of assistance under Clause 4, make it impossible for us to accede to the fiscal provisions of the additional protocol".
On that basis, I do not think that there could be much misunderstanding about what the noble Earl said. However, in his defence, since my name was mentioned, I thought it only right to draw attention to what he said.
3.15 p.m.
Lord Mishcon: I wish only to say this so that there is no misunderstanding. That is exactly what I was quoting. The Minister inadvertently gave the impression that it would be impossible to sign the protocol if the amendment that I have moved were agreed to. That is not the position, as is shown by the fact that four other countries have done just that.
Lord Harris of Greenwich: My Lords, since we can make only one speech during Report stage I do not propose to breach the rules of order.
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for two matters. First, he brought us back to a state of order. The noble Lord, Lord Mishcon, had slipped us out of such order wholly inadvertently. Secondly, the noble Lord, Lord Harris, was for once very concerned that he had got me into trouble. That is a very easy situation for me to get into. However, I assure him that on this occasion it was not his fault but that of the noble Lord, Lord Mishcon. The noble Lord, Lord Mishcon, very kindly said that I was courteous and understanding in my approach to matters, and I

707
would hope to be so today. The last thing that I would wish to do would be to mislead either the noble Lord, Lord Mishcon, or anyone else. I am grateful to the noble Lord, Lord Harris, for having come to what I believe is the important part of this concern.
The noble Lord, Lord Mishcon, referred to the fact that we had a debate during the Committee stage on the bankers' concern about the operation of Clause 4. I sought on that occasion to explain the safeguards which are already in the Bill and to set out the reasons why an amendment along the lines now proposed would be both unnecessary and damaging to our ability to co-operate with other countries in the fight against crime. The noble Lord, Lord Mishcon, has suggested that it may indeed be possible to ratify the additional protocol to the European Convention on Mutual Assistance in Criminal Matters while still having a dual criminality requirement in fiscal cases, as these amendments propose.
The protocol is a complex document and its relationship to the convention is equally so. But it is important to bear in mind that the protocol is not only concerned with fiscal offences. This is the point about which the noble Lord, Lord Harris of Greenwich, was concerned. In all it concerns three separate and distinct measures of which fiscal offences are only one. It is possible to ratify the protocol itself if the state concerned can accept any one of those three measures. It follows that it is perfectly possible to ratify the protocol without accepting its fiscal provisions. Article 8 of the protocol makes this possible.
But this would be of very little advantage to us since the other two matters with which the protocol is concerned are largely procedural. In short, there will be only very limited benefit to us in ratifying the protocol unless in doing so we are able to accept its fiscal provisions. In my remarks in our debate in Committee I tried to make it as clear as possible that it was the fiscal provisions of the protocol that we were concerned to be able to ratify. If the amendment which stands in the name of the noble Lord, Lord Mishcon, were to be made to the Bill it would render it impossible for us to accept the fiscal provisions of the additional protocol. We could accept the other provisions but not the fiscal provisions. This is because there is nothing in the wording of the protocol which makes it possible to accept the fiscal provisions but to make this acceptance subject to a dual criminality test. That is the real difficulty with the noble Lord's amendment. The advantages that we believe will follow from ratifying the fiscal provisions of the additional protocol and co-operating with other countries in proceedings involving fiscal offences are, in the Government's view, persuasive.
I hope that that explanation, coupled with the assurance that I gave to the noble Lord in Committee, will satisfy him. I repeat the assurance that I gave him. The noble Lord asked whether I could give an assurance in relation to any fiscal matter complained of. My answer was that the Secretary of State would not give such consent unless
708
a similar matter was a criminal offence in this country.
I explained that I could not give a blanket assurance which would bind any future Secretary of State. However, I gave the assurance that any future Secretary of State, confronted with such a situation, would give it his serious attention. I believe that to be the case. While I understand the noble Lord's difficulties, I assure him that if his amendment were passed he should not be able to sign that part of the protocol which refers to fiscal matters.
Lord Hylton: My Lords, before the Minister sits down, can he explain why Austria, Iceland, Norway and Sweden appear to have excluded the fiscal requirements of the protocol?
Earl Ferrers: My Lords, with the leave of the House, the reservations made by the other countries are not in the terms of the amendment. They state that the four countries concerned will not assist at all in fiscal cases; not that they would do so subject to dual criminality.
Lord Mishcon: My Lords, I regret some of the statements made by the noble Earl only because I regarded as being unfortunate two matters to which I referred. The noble Earl will realise that I am not impugning any part of his integrity when talking to, leading and informing the House. I know him too well to believe that that is in issue.
However, what are we to assume when the following is the position? First, the House was not informed that four countries had made the reservation, as they were entitled to under Clause 8 of the protocol. Secondly, what is one to infer from the question asked at col. 884 of Hansard dated 22nd January:
"I understood him to say that if the Bill were amended in this fashion we would not be able to ratify the convention. Am I correct in that assumption?"?
The noble Earl's answer was, "Yes". As I understand it, that means that one cannot ratify the convention if one makes a reservation in regard to fiscal matters, as four countries have already done.
It would be wrong of me to ask for a Division on the matter. I rely upon what the noble Earl said on the last occasion about what the Secretary of State may do when met with a demand from a foreign country where there was not mutual criminality. He voiced the weakness of that situation in saying that he cannot bind a future Secretary of State. I hope only that all future Secretaries of State will be honourable and will read what the noble Earl said on the last occasion and has repeated on this occasion. However, it would have been most wise and proper if the noble Earl had seen fit to accept the amendment in the light of the information which I have now brought to the House.
Earl Ferrers: My Lords, with the leave of the House, I wish to clarify one matter. The noble Lord, Lord Mishcon, is always fair and I was not conscious of misleading the House. He referred to a question

709
which was asked in Committee by the noble Lord, Lord Harris of Greenwich. He said:
"I understood him to say that if the Bill were amended in this fashion we would not be able to ratify the convention. Am I correct in that assumption?".
I said, "Yes". I should have been more accurate if I had said, "Yes, we would not be able to ratify the fiscal part of that protocol".
As I have explained this afternoon, it is true that we could ratify the protocol but without the fiscal advantages. However, as I have also tried to explain to the noble Lord, Lord Mishcon, we believe that it is important to ratify the fiscal advantages.
Lord Mishcon: My Lords, I am obliged to the noble Earl for that clarification. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Earl Ferrers Earl Ferrers moved Amendments Nos. 4 and 5:
Page 4, line 25, leave out ("the United Kingdom") and insert ("England, Wales or Northern Ireland or, as the case may be, Scotland").
Page 4, line 30, after ("State") insert ("or, as the case may be, the Lord Advocate").
The noble Earl said: My Lords, as I said when I moved Amendment No. 1, Amendments Nos. 4 to 19 cover matters relating to Scotland in order to bring its law into line with that of England and Wales, as is proposed in the Bill. I beg to move.
On Question, amendments agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 6:
After Clause 7, insert the following new clause:
"Search etc. for material relevant to overseas investigation: Scotland
.—(1) If, on an application made by the procurator fiscal it appears to the sheriff—

(a) that there are reasonable grounds for believing that an offence under the law of a country or territory outside the United Kingdom has been committed; and

(b) that the offence would constitute an offence punishable by imprisonment if it had occurred in Scotland,

the sheriff shall have the like power to grant warrant authorising entry, search and seizure by any constable as he would have at common law in respect of any offence punishable at common law in Scotland.
(2) No application for a warrant shall be made by virtue of subsection (1) above except in pursuance of a direction given by the Lord Advocate in response to a request received by the Secretary of State—

(a) from a court or tribunal exercising criminal jurisdiction in the overseas country or territory in question or a prosecuting authority in that country or territory; or

(b) from any other authority in that country or territory which appears to him to have the function of making requests for the purpose of this section,

and any evidence seized by the constable by virtue of this section shall be furnished by him to the Lord Advocate for transmission to that court, tribunal or authority.
(3) If in order to comply with the request it is necessary for any such evidence to be accompanied by any certificate, affidavit or other verifying document the constable shall also furnish for transmission such document of that nature as may be specified in the direction given by the Lord Advocate.
(4) Where the evidence consists of a document the original or a copy shall be transmitted and where it consists of any other
710
article the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.
(5) The Treasury may by order direct that any powers to enter, search or seize granted by virtue of subsection (1) above which may be exercised by a constable shall also be exercisable by, or by any person acting under the direction of, an officer commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979; and the Secretary of State may by order direct that any of those powers shall also be exercisable by a person of any other description specified in the order.
(6) An order under subsection (5) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendment agreed to.
Clause 14 [Interest on sums unpaid under confiscation orders]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 7 to 11:
Page 12, line 23, after) ("1973"( insert ("or under section 396(1) of the Criminal Procedure (Scotland) Act 1975").
Page 12, line 27, after ("Court") insert ("or, in Scotland, the sheriff").
Page 12, line 30, after ("payment)") insert ("or under subsection (2) of section 396 of the said Act of 1975 (which makes similar provision for Scotland)").
Page 12, line 32, leave out ("that section") and insert ("the said section 31 or under section 407(1A) of the said Act of 1975").
Page 12, line 35, at end insert ("and in Scotland shall be the rate applicable to an award of damages in the Court of Session").
On Question, amendments agreed to.
Clause 20 [Extradition]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 12 to 15:
Page 15, line 17, leave out ("or").
Page 15, line 19, at end insert—("or
(k) an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates;").
Page 15, line 27, after ("Convention") insert ("(i)").
Page 15, line 29, at end insert (";and
(ii) an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates;").
On Question, amendments agreed to.
Clause 22 [Interpretation of Part II]:
Earl Ferrers Earl Ferrers moved Amendment No. 16:
Page 16, line 14, at end insert—
("(2A) In relation to Scotland, any expression used in this Part of this Act which is also used in the Criminal Justice (Scotland) Act 1987 has the same meaning as in that Act and "drug trafficking offence" means an offence to which section 1 of that Act relates.").
On Question, amendment agreed to.
Schedule 1 [United Kingdom Evidence for Use Overseas: Proceedings of Nominated Court]:
Earl Ferrers Earl Ferrers moved Amendment No. 17:
Page 18, line 44, after ("State") insert ("or, in Scotland, the Lord Advocate").
On Question, amendment agreed to.
Schedule 4 [Consequential and other Amendments]:
Earl Ferrers Earl Ferrers moved Amendment No. 18:
Page 22, leave out lines 16 to 21 and insert —
("4. —(1) The Criminal Justice (Scotland) Act 1987 shall be amended as follows.
(2) In section 1—

(a) in subsection (2) after paragraph (c) there shall be inserted —

"(cc) an offence under sections 11, 13 or 17 of the Criminal Justice (International Co-operation) Act 1990;",

and in paragraph (d) for "or (c)" there shall be substituted ", (c) or (cc)";

(b) in subsection (6) after paragraph (d) there shall be inserted —

"(e) manufacturing or supplying a scheduled substance within the meaning of section 11 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section;".

(3) In section 3(3) after the words "section 43 of this Act" there shall be inserted the words "or section 13 of the Criminal Justice (International Co-operation) Act 1990".
(4) In section 5(2) the words from "at the date" to "first occurs)", the words "on that date" and the words "as at that date" shall cease to have effect.").
On Question, amendment agreed to.
Schedule 5 [Repeals]:
Earl Ferrers Earl Ferrers moved Amendment No. 19:
Page 23, line 18, at end insert —

("1987 c. 41.

The Criminal Justice (Scotland) Act 1987.

In section 5(2) the words from "at the date" to "first occurs)", the words "on that date" and the words "as at that date".").

On Question, amendment agreed to.

Human Fertilisation and Embryology Bill [H.L.]
3.27 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.
Moved, That the House do now resolve itself into Committee. —(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Meaning of "embryo", "gamete" and associated expressions]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 1:
Page 1, line 7, after ("stated") insert ("or implied").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 4 concerning the same point. I consider both amendments to be purely drafting amendments,
712
although sometimes it turns out that they amount to more than drafting when it comes to the crunch.
It is stated in Clause 1(a):
"References in this Act to an embryo, except where otherwise stated, are to a live human embryo".
However, Clause 3(2) states:
"No person shall place in a woman … a live embryo other than a human embryo".
It is perfectly clear from the context that the live embryo there mentioned is meant to be a non-human embryo. That is the only way in which the sentence can make sense. But under Clause 1(1) it can refer only to a human embryo because it is not otherwise stated. Therefore, at present the subsection provides that no person shall place in a woman a live human embryo other than a human embryo. That, of course, is nonsense.
That situation would be avoided if my amendment were accepted. It inserts the words "or implied" after the word "stated" in Clause 1(1). Mutatis mutandis, the same applies with regard to Amendment No. 4 if Clause 1(3) is read in conjunction with Clause 3(2)(b). I hope that I have expressed the position clearly. It is rather confusing, but I believe that both amendments need to be made. I beg to move.
3.30 p.m.
Baroness Phillips: Perhaps I am foolish, but I am not quite clear what else could be implanted into a woman except a human embryo. While I find this whole matter totally repellent, this is absolutely ridiculous. What are we talking about? The noble Lord, Lord Kilbracken, did not explain what is the alternative.
Lord Ennals: Since this is the first intervention which I make in this debate, I should say that I shall be speaking in a personal capacity. That saves me repeating myself on every intervention which I make. Speaking from this Front Bench, I am speaking for myself.
In relation to this amendment, I find it very difficult to conceive of legislation which deals with implications. Implications are always very difficult to define. An implication is like a nod and a wink. I know what is stated but I do not know what is implied. I hope that my noble friend will not proceed to a Division on this amendment. I do not believe that it is suitable to legislate for a matter of judgment rather than of fact.
The Lord Chancellor: The noble Lord, Lord Kilbracken, has kindly drawn attention to this question in order to focus on, for example, the provision in Clause 3(2). The noble Baroness, Lady Phillips, asked what is involved. I cannot make it plainer than to say that what is involved is "a live embryo other than a human embryo"; for example, some form of animal embryo. This makes it quite clear that no person shall place in a woman a live embryo other than a human embryo. That is the purpose involved here. The noble Baroness may feel that that is so extraordinary that it should not be prohibited but extraordinary things can happen and, therefore, it is wise to make the prohibition.

713
As regards the amendment, the advice which I have been given is that the meaning of Clause 3(2) is absolutely plain and that no further clarification is necessary. It would seem to me that the statement in Clause 3(2)(a) as a whole is a statement that the first word "embryo" there appearing is not a human embryo but an embryo other than a human embryo. I should have thought that that is reasonably plain. Accordingly, the advice that I have received, which I pass on to the Committee, is that this amendment is unnecessary.
Lord Kilbracken: I am glad to know that the noble and learned Lord does not believe that the amendment is necessary. I know that if any Member of the Committee other than a Minister tables an amendment he is often told that it is deficient because, although it is clear what he means, it is not absolutely exact down to the last sentence and syllable. It seems to me that the wording on this occasion is not exact because in Clause 3(2) it simply is not stated, as it has to be in Clause 1(3), that the embryo is a non-human embryo. However, in view of what the noble and learned Lord said, I do not press the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees: If Amendment No. 2 is agreed to, I cannot call Amendment No. 3.
Lord Kilbracken Lord Kilbracken moved Amendment No. 2:
Page 1, line 7, leave out from ("embryo") to ("the") in line 8 and insert ("after").
The noble Lord said: Again, this is a matter of drafting. If we now continue with Clause 1(1) we read that:
"References in this Act to an embryo, except where otherwise stated, are to a live human embryo where fertilisation is complete and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote".
I have tried on other occasions to cut down on the number of words used in legislation and I do not see why on this occasion we have to say:
"A live human embryo where fertilisation is complete",
and then go on to say when it is to be considered that fertilisation is complete. Therefore, I propose that a whole line should be cut out of the subsection and that it should read:
"are to a live human embryo after the appearance of a two cell zygote".
That says exactly the same thing but cuts out a dozen words. I beg to move.
The Lord Chancellor: While I believe that if this amendment were passed, it would not affect the definition in the sense of altering its meaning, what is proposed to be cut out contains words of explanation which are important for ordinary people —and that includes myself—understanding exactly what is involved here.
We shall come to deal in some more detail with this matter when my noble friend Lady Elles proposes her Amendment No. 3. However, for the time being, I simply suggest to the Committee that it is as well to state in the definition clause the steps by which that
714
definition is arrived at. The appearance of a two cell zygote might not be completely self-explanatory to everyone who takes up this Bill. On the other hand, I believe that the idea of completion of fertilisation is something which is more readily understood. The steps by which the definition is arrived at is helpful in enabling people to grasp what the definition seeks to do.
I hope that the noble Lord will feel that although he has raised a point of considerable interest it may be wise judgment —and I revert to what the noble Lord, Lord Ennals, said, that this is a matter of judgment —to leave this matter as it is.
Lord Kilbracken: I am grateful to the noble and learned Lord. I shall also be very interested to here what the noble Baroness, Lady Elles, will say on the next amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Elles Baroness Elles moved Amendment No. 3:
Page 1, line 7, leave out from ("embryo") to end of line 9 and insert ("and, for this purpose, an embryo shall be taken to exist from the time that a single sperm has completed penetration of an egg.").
The noble Baroness said: Before I propose this amendment I should like to make a few general remarks which I think are important in regard to the way in which we debate this issue. It must be made clear at the outset that the main objective, which I think is shared by us all, is to provide a legal framework related to human fertilisation and embryology against the background of far-reaching and fast moving medical and scientific development. Inevitably there will be disagreements throughout this stage of the Bill, but no one should be falsely accused of tabling wrecking amendments unless those making the accusations, having listened carefully to the arguments, will state clearly and definitely what wrecking has been made or what it was intended to wreck.
History has, regrettably, shown that religious wars are always the most serious and bitter. However, I fervently hope that this Chamber will not become a battleground. In that connection, I should state that I am not a Roman Catholic. If you are a Catholic, you tend to be attacked. That is not the reason I am not a Catholic; I just happen not to be one. I am a very ordinary member of the Church of England.
I should now like to speak to the purpose of this amendment. I make it perfectly clear at the outset that it is not to prejudice the issue which we shall debate on Clause 11. I do not intend to open that debate now. That issue remains completely open. It follows the purpose of the Bill to make provision, in connection with human embryos and arty subsequent development of such embryos, to prohibit certain practices in connection with embryos or gametes. That is in line with the Warnock Report which recommended that the embryo of the human species should be afforded some protection in law. That recommendation is found at paragraph 11.17 of the report. As legislators therefore we have to consider the best and most effective way of fulfilling that recommendation.
The amendment also seeks to ensure that the commitment given by Her Majesty's Government, that both Houses will have the opportunity of voting on whether research should be allowed on the human embryo, is fully honoured and on identical terms with Clause 11, subsections (1) and (2). To ask the legislators to vote on anything which is not clear would be like asking them to vote on a false prospectus.
As legislators, therefore, we have to consider these points. If the embryo is to be protected it should be assumed that it must be protected at all stages of its existence, from its initial development right through its various stages. What help do we get from the Bill itself? In Clause 3(4), referring to the primitive streak, the calculation of when 14 days are to run begins with the day when the gametes are mixed. If the vote goes in favour of research under Clause 11, the 14 days will start to run from the time when the gametes are mixed. That, as I understand it, is the meaning of the Bill. I do not argue with that; that is as it is drafted. It is, if I may use an analogy, the time when the clock starts to tick.
Turning back to Clause 1, the definition in the Bill states that:
"fertilisation is not complete until the appearance of a two cell zygote".
I am sure that many of us —those of us who are not scientists —have been fed with an enormous amount of literature to try to decide what happens when, how and why. From what I have read —and I shall obviously listen with great respect to those who disagree, particularly those who have scientific experience —it is clear that the definition is seriously flawed. Nothing that I have read on this subject shows that the human embryo is only complete when a two-cell zygote is formed. If you follow through the process the formation of the single cell zygote seems to be the point when fertilisation is completed, but that does not consider the fact of when it starts.
The consequence therefore of the way in which Clause 1 is drafted is that the time from the stage that the gametes are mixed, as in Clause 3(4), to the stage of the two-cell zygote —and I understand there is no disagreement about this by the scientists —is about 30 hours. That is therefore about 30 hours after what I would refer to, as I did in relation to Clause 3(4), as the time when the clock starts ticking.
There are several consequences because of the way in which this definition is drafted. If research should be allowed, that is no problem for Clause 11 as far as the 14-day period is concerned; that is clear. If research should not be allowed —I do not go into the merits —it would not be allowed from the stage of a two-cell zygote; that is, the embryo would be available for research, if so desired, or experimentation up to that stage of its development. It is therefore incumbent on all who do not agree with my amendment, or some similar amendment with the same significance, to state the purpose for which they would use that 30 hours.
Apart from the research issue, because that is only one part of this very important and difficult Bill, throughout the Bill protection is given for storage,
716
keeping or using the embryo, as in Clause 3; and the same protection is given for gametes, under Clause 4, and for other related purposes. However, there would be no protection under the Bill as it is now drafted for that period which could legitimately be called the "conceptus", between the periods of the entry of the sperm into the ovum and the time that the two-cell zygote is formed. That is a period of about 30 hours altogether when there would be no protection for the single-cell zygote which, as I understand it, is formed approximately 20 hours after the penetration of the sperm into the egg.
Having explained the purpose of my amendment, with the permission of the Committee I will briefly explain why I propose this specific amendment. Many distinguished scientists have written on this subject. Fertilisation is the start of the process of growth and development which through childhood produces an adult human being. As the Warnock Report states, no particular part of the development and process is more important than any other; all are part of a continuous process.
The definition in the Warnock Report, paragraph 1.4, takes as a starting point the meeting of egg and sperm at fertilisation. It is 20 to 24 hours after that time that the fertilisation is complete; when two nuclei have fused and a single-cell zygote is formed which contains, as I understand it, 46 chromosomes of which 23 are from the sperm and 23 from the egg. The chromosomes identify the genetic structure of a new individual human being, which structure, of course, lasts the whole lifetime of that individual.
The definition in the Bill, therefore, is in my view defective even with reference to the term "completion", because it is clear from the definition that I have read that completion is before the formation of the two-cell zygote. Perhaps I may quote two very distinguished professors. One is Professor Moore of the University of Toronto, an acknowledged expert. He explains in The Developing Human:
"Fertilisation is a sequence of events that begins with contact between a sperm and a secondary oocyte and ends with the fusion of the nuclei of the sperm and ovum and the intermingling of maternal and paternal chromosomes. This process lasts about 24 hours ending with the formation of a single cell zygote".
That particular definition explains why it is so difficult in law to fix the time at which one is prepared to say that the human embryo begins at a certain time or whether, as in the Bill, it is not only after it is formed, but even six hours after that. Progress, an organisation in favour of research, states in its booklet Freedom to Choose:
"The first earliest visible evidence of fertilisation is the appearance of the two pro-nuclei approximately 12 hours before the pre-embryo undergoes division to the two cell stage. Second, it is possible that an unfertilised egg may divide into two cells without fertilisation having taken place".
It continues:
"Fertilisation is a sequence of events which begins with contact between a sperm and a secondary oocyte and ends with the fusion of the nuclei of the sperm and the ovum".
Finally, I refer to an excellent report written by Professor Short of Monash University on reproduction in mammals. Writing on the enormous diversity of reproductive mechanisms across mammalian species, he states:

717
"About the only common factor is somewhere along the line a spermatozoa meets an egg and so a new individual is formed".
In my submission it is that individual who should be protected under the law of this country.
It is important at this stage of the Bill to know what we are talking about and what will be the consequences if we get it wrong. This amendment, if accepted, or indeed similar wording which would meet the objections I have made, will close the gap of 30 hours which, as the Bill is presently drafted exists between the mixing of the gametes, as in Clause 3(4), and the present defective definition of the human embryo in Clause 1(1). I beg to move.
3.45 p.m.
The Lord Chancellor: It might perhaps be convenient if I indicate a view upon this matter, not seeking in any way to restrict discussion on it, but in order to indicate the position which I shall take with regard to it.
First, I congratulate my noble friend on the very clear way in which she introduced this highly technical amendment. Secondly, I join with her most emphatically in the spirit which she sought to set before the Committee as the way in which the debates on this Bill should be conducted. I and Members of the Committee know that there are many very strongly held views on these matters which are utterly fundamental to human life and to our individual views on it. I believe that we shall be able to conduct our debates in Committee with a mutual respect for the differing views which each of us holds, in the hope that ultimately we shall be able to get a Bill which is effective for the regulation of these very important matters in our country.
Subject to the very unwelcome possibility of the Parliament Act, but leaving that out of account, in order to get a Bill it will be necessary to secure sufficient agreement to its provisions in both Houses for the Bill to pass into law.
With that introduction I now turn to this amendment. As my noble friend has explained, the purpose of it is to change the definition of "embryo" in Clause 1(1). The effect of the amendment is to define the term "human embryo" in a way that goes back to the moment when the process of fertilisation begins. As my noble friend has made clear, precisely which definition is taken does not affect the main question concerning Clause 11, because whatever one's view is about that clause, one can give effect to it in one way or another whatever the definition may be. My noble friend has chosen to raise this particular matter. Therefore, it is important to consider it, leaving for later consideration the important questions that arise as regards Clause 11 of the Bill.
As drafted, Clause 1(1) defines an embryo at the point where the process of fertilisation began, when the sperm head penetrates the egg, and as being completed with the appearance of a two cell zygote. This aspect of the Bill has caused considerable interest since the Bill was published. However, I point out to the Committee that it is derived directly from what is said in paragraphs 7 and 8 of the White Paper, as also amplified in the footnote to paragraph 7.
718
The White Paper says at paragraph 7:
"… there are difficulties in pinpointing particular events, since most stages of development occur over a period of several hours or days. For example, fertilisation is not an instant event but a continuous process which takes about 24 hours, ending as the fertilised egg begins to divide(1)".
There then follows the footnote, which states:
"The process of fertilisation is generally regarded as beginning with the passage of sperm throught the corona radiata, a layer of cells surrounding the egg, and ending with the intermingling of maternal and paternal chromosomes immediately prior to the first cell division of the fertilised egg".
That leads to paragraph 8, which states:
"The Government proposes that legislation should apply to embryos created in vitro (ie by mixing sperm and eggs together in a dish), from the point at which fertilisation is completed. The start of cell division would be taken to be proof that the process of fertilisation has ended".
I have read that out at length for two reasons. The first is to stress that what is in Clause 1(1) has been stated policy for over two years and until recently without particular dissent. The second reason is to make it clear that the purpose of the subsection is to provide a certain and clearly discernible meaning to the term "embryo". In this difficult and often controversial field, certainty and clarity are qualities which are very desirable.
As I understand it, my noble friend's chief concern is that this definition would leave the embryo, as defined by my noble friend as existing from the completion of penetration of an egg by a sperm, unprotected for a period of around 24 hours. I recognise the concern she feels about this matter. It may therefore be helpful if I do two things.
First, to set out in my own words what I understand to be the scientific position in this period. Of course, I am subject to correction by Members of the Committee who know a great deal more about the matter than I do. I shall set out my understanding in order that the generality of us can follow. Secondly, I shall set out the effects of the Bill as it stands over this period of time while fertilisation is taking place.
On the scientific position, when human sperm and ova are mixed in a glass dish, there follows a variable period until the sperm head passes through the outer layer of the ovum. This stage can be noted by careful observation but, when it has taken place and the membrane of the sperm head and egg have fused, I understand that it is not possible to detect from the outward appearance that sperm entry has occurred.
For a time then, on looking at the ovum, one cannot tell whether a sperm has entered it or not. A later stage, which is also detectable, is the appearance of the formation of two pronuclei some 16 or more hours after the start of the fertilisation process. After about six to eight hours more, the pronuclei disappear and again the outward appearance of the ovum does not indicate whether it has been penetrated by a sperm. Members of the Committee will observe that during this time there are two periods during which, through observation, one can tell that penetration of the ovum by a sperm has occurred, interspersed with periods when no visible sign of this is observable.
It is after the further period of uncertainty that one can observe division into two cells which later

719
undergo further cell division. The important point is that, from the initial cell division stage, it will always be apparent that fertilisation has been completed. There are no subsequent periods of uncertainty after this stage. That completes my attempt to state the position as regards development.
I turn now to the effects of the amendment on the Bill as it stands. We are talking in practice about the protection offered to an embryo which is being developed in vitro or in a dish. The Committee will note that Clause 3(1) makes it clear that:
"No person shall … bring about the creation of an embryo … except in pursuance of a licence".
That applies to the period before the embryo comes into existence as defined. It is therefore clear that the one cell zygote stage can be within the ambit of the Bill. I move now to Schedule 2 to the Bill, as regards treatment services. Paragraph 1(1) makes it clear that such a licence may authorise,
"bringing about the creation of embryos in vitro."
Paragraph 1(3) goes on to specify that a licence for treatment,
"cannot authorise any activity unless it appears to the Authority to be necessary or desirable for the purpose of providing treatment services".
Even before the existence of an embryo as defined in Clause 1(1), it is apparent that the statutory licensing authority will have powers of control over what is done in the course of providing treatment services before the two cell zygote stage.
I turn now to the question of research and Clause 11. Here I emphasise once again that the Bill offers the Committee a choice in that clause of whether to accept limited research on embryos or whether to ban it altogether. I suggest to the Committee that we should not, before we reach Clause 11, seek to anticipate what the decision of the Committee will be on this very difficult issue.
Noble Lords: Hear! hear!
4 p.m.
The Lord Chancellor: In saying that, I recognise the fear of many Members of the Committee that the definition of "embryo" in Clause 1(1) may, if the vote on Clause 11 goes against research, leave uncontrolled any research on in vitro fertilisation up to the two-cell stage, for a period of around 24 hours. But I point out to the Committee that Clause 3(1) provides that no one can bring about the creation of an embryo except in pursuance of a licence while paragraph 1(1) of Schedule 2 says that a licence for treatment may authorise
"bringing about the creation of embryos in vitro"
for use in treatment services. It is apparent therefore that if research is rejected, the Bill will prevent research projects in which it is intended to create a two cell zygote.
The question is whether the Bill will sufficiently apply to all relevant research projects in the United Kingdom, especially those where the intention is that they shall be completed before the two cell stage. On this I have listened closely to what my noble friend has said, and of course I shall listen carefully
720
to what noble Lords who will participate in the debate may say. The Government will consider, before Report stage, and in the light of the Committee's decision on Clause 11, whether the position on the Bill in relation to control in the period before the two cell zygote stage is reached is satisfactory. Depending on the results of this consideration the Government will decide whether they should introduce an amendment at Report to enable the House to consider this matter again.
There may be more than one way to achieve the result that my noble friend might have in mind in that event. Her amendment represents one way of dealing with it. It may well be that there are other ways of doing it which can be based on precisely determined events. That is an important aspect. We wish to have in this difficult area a clearly enforceable regime. It is therefore important —it may not be possible but it is important if possible —to try to base that on precisely determined events. In saying this I accept that if we cannot find a solution which satisfies my noble friend, she will wish to press her amendment, or perhaps an updated version of it, at Report stage.
I hope that what I have said will indicate not only the difficulty of the issue we are debating but also the Government's desire, now that doubts have been expressed about what had been a reasonably unchallenged proposal in the 1987 White Paper, to consider carefully what has been and will be said in this debate. I hope also that my noble friend Lady Elles and noble Lords who may speak in support of the amendment will in their turn accept that a clearer picture is likely to emerge on this issue when we have been able to make further progress on the Bill. I thought it might be useful to state the position at this stage without in any way seeking to inhibit noble Lords who wish to express views on the matter.
Lord Ennals: I appreciate the spirit in which the noble Baroness moved the amendment. What she said about the mood of the debate was absolutely right. If someone has used the word "wrecking" it certainly is not anyone I know. We are grateful both to the noble Baroness for raising the issue and to the noble and learned Lord the Lord Chancellor for saying that the time for us to look at this matter will be after we have debated Clause 11, which calls for the major decision, and before we move to Report stage. Secondly, I very much appreciate the fair and balanced way in which, both at Second Reading and today, the Lord Chancellor presented the case. All sides of the Committee will appreciate the way in which he did so.
With few exceptions in this Chamber —those exceptions are notable ones —we are laymen who know what we know only because others have told us. That certainly applies to me, and I suspect that it applies to the noble Baroness, Lady Elles. We manage the terms correctly and we sound knowledgeable. But the knowledge is not that which we have gleaned for ourselves; it is knowledge which has been conveyed to us. It was because this is such a difficult subject and because so few of us know the subject as we know most things in life that the Warnock Committee was established. It was

721
established in order that we could have before us a pattern of legislation which was comprehensible and, as the Lord Chancellor said, clearly enforceable.
It is interesting that, in terms of a definition, the kind of problem referred to by the noble Baroness, Lady Elles, was not touched on by the Warnock Committee as being a way forward in legislation. In paragraph 1.4 the committee said:
"we have taken as our starting point the meeting of egg and sperm at fertilisation".
Those words are similar to those of the noble Baroness, but at no stage that I know of has the new definition which she has suggested been put forward. It was not in the White Paper. So far as I know it has not been put forward by most of the "pro-life" organisations. It was not put forward by the noble Duke, the Duke of Norfolk, at Second Reading, or indeed by the noble Baroness in her own excellent speech at Second Reading. Therefore I think we would be unwise to be pushed into a new definition, particularly when the definition involves considerable difficulties.
I too take my brief from experts—in this case, from the Medical Research Council. It says that the definition in the Bill as drafted was chosen because a readily identifiable morphological change occurs at the first cell division. The only way to tell whether the sperm has penetrated the egg is by fixing and staining. This would involve the destruction of the pre-embryo, the word which we are not supposed to use. Presumably the intention of the amendment is to protect the inseminated egg. In fact it would have entirely the opposite effect. In order to verify the legal definition and enforce the law, embryos would have to be destroyed in order to confirm their former existence. I believe that the definition in the Bill is one which we should not seek to change at this moment. I do not disagree with the Lord Chancellor that it would be reasonable to return to it, but the amendment proposed by the noble Baroness would create the great difficulty that in order to confirm its former existence it would be necessary for the embryo to be destroyed.
I hope that with the explanation and the assurance given by the noble and learned Lord the Lord Chancellor the noble Baroness will feel that this is an issue to which we can refer later but with which we should not deal at this moment. It would in any case anticipate the crucial debate on Clause 11. I hope that the noble Baroness will feel able not to press the amendment to a vote.
Lord Swann: I am troubled by the amendment. In saying so I declare an interest of sorts. Some 40 years ago the noble Lord, Lord Rothschild, and I spent a great many hours looking at and experimenting on the process of fertilisation. This did not involve human eggs or human sperm —there was little of that in those days—but eggs and sperm which looked extremely like human eggs and human sperm though in fact they came from an invertebrate animal. Both of us spent many hours watching under the microscope and carrying out a variety of experiments. We discovered a good many things which go on in the early stages, but I shall not give the Committee a biological lecture on that.
722
I confirm totally what the noble Lord, Lord Ennals, has said. It is difficult to tell when a sperm has penetrated an egg. It is difficult enough with invertebrate eggs, which are clearer and easier to look at under a microscope. Moreover, it is by no means certain that, having penetrated, it will form a proper pro-nucleus, as it is called, and by no means does that always move towards the nucleus of the egg and the resulting fusion. There are in fact many things which can and sometimes do go wrong between mixing sperm and eggs. Indeed, you only know that things have gone right when the two nuclei have fused. However, that is often very difficult to see unless, as the noble Lord, Lord Ennals, said, you kill the egg and stain it. The only easy way to tell is when the egg divides for the first time into two. Then you know that the whole process of genetics and growth has been launched.
Therefore, although I respect the motives behind the amendment, I feel that it is confusing and in some degree incorrect.
The Duke of Norfolk: I should like to preface my remarks by saying that I happen to be a Catholic and that I hope that everything which happens during the course of this debate will be done in the usual pleasant and happy way in which we deal with matters in this Chamber of which I have the honour to be a Member. I am a very new Member —some noble Lords have been here for many years —but I am very proud and glad to be here. I loathe any question of our having unpleasant arguments.
However, having said that, I must point out to the noble Lord, Lord Ennals, that I disagree with what he said. I mentioned this issue in my Second Reading speech; I did so most clearly. I referred to the period of 33 hours and said that it was one of the aspects which worried me. I should like to continue a little further so as to make certain that the views of the pro-life group in this country will be clearly expressed.
The group is very worried about any attempt not to say in plain English that it wants no experiments from fertilisation onwards. Further, as noble Lords will realise from what has already been said, there are variations on when life actually starts. We say that from the start, whenever that may be, there should be no experiments. The various medical journals that one can read always say that life starts from fertilisation. However, it has lately been said that it is in fact 30 or 40 hours later. The group wishes to make quite clear just what it is talking about. I hope that my noble friend Lady Elles will withdraw the amendment and that she will return to the matter on Report. Life could then be defined as being from the very beginning of fertilisation, whenever that may be.
The Bill as drafted will make experimentation on embryos permissible up to 30 hours, without a licence for experimentation being required. Such work could be undertaken to try to develop new abortifacients and contraceptives. Experimenting on drugs to prevent fertilisation would result in embryos being created when a drug failed to work. That is how it would be done.

723
The group recently organised a Gallup poll. It was conducted from 13th to 18th December. Gallup polls are always undertaken in a very fair way; indeed, you cannot put down leading questions and hope to receive an answer. The company decides how the questions are put and they are put in a fair and responsible way. The poll was commissioned by the Society for the Protection of Unborn Children on behalf of Life. It showed that 57 per cent. of the public oppose the use of human embryos for the development of new contraceptives and that 68 per cent. opposed their use for the development of abortifacients. It is intolerable that such experiments should be permitted in this way, without defining more accurately how life begins.
Those noble Lords who support such experimentation would like to include provision for experimentation up to 14 days in Clause 11, if they can get a majority. But I do not wish to discuss that matter now. However, they have also made clear the fact that they would like all research carefully controlled and licensed. As the Bill stands, anyone can produce embryos and perform any kind of research upon them without a licence, so long as they were destroyed before the first cleavage; that is, before the two-cell zygote started to form. I do not really think that those noble Lords would like to see this in effect. I hope therefore that we can agree to correct this drafting error.
An embryo must come into existence when separate gametes cease to exist —that is, when the 23 chromosomes of the man and the 23 of the woman have united. We are defining that as when the sperm has penetrated the egg, for want of a better definition. However, I should like to state quite clearly that the group believes that the beginning of life is the very beginning and it wants that fact to be covered in the Bill when the noble and learned Lord returns to the matter on Report.
Lord Walton of Detchant: I do not wish to prolong the debate on this issue, having heard the very well-argued speech of the noble Baroness, Lady Elles, and the comments made by the noble and learned Lord the Lord Chancellor about the prospect of this amendment being modified on Report. However, there are one or two points that I should like to draw to the Committee's attention. They relate to the definition. I do not believe that one can define an embryo until the genetic material from the gamete of the male —that is, the sperm —and the genetic material in the ovum of the female have fused.
I appreciate the reason for the noble Baroness's wish that this gap of up to 30 hours from the moment when the sperm penetrates the ovum should fall within the ambit of the Bill. I believe that at that stage it would be proper to call the combination of the sperm and the ovum the conceptus. After all, it is the product of conception, but it is not in my view yet an embryo until the fusion has taken place between the material from the sperm and that from the ovum and until it has then demonstrated its ability to divide at the two-zygote stage. That is the crux of the argument at present. However, the problem is that after the sperm has penetrated the
724
ovum and even when two pro-nuclei have formed, one of them containing material from the sperm and the other containing material from the ovum, the process may end at that stage and the conceptus may degenerate. Moreover, even at the single-cell zygote stage, when fusion has taken place, degeneration may yet again occur spontaneously.
Of course there are other situations where there may be three pro-nuclei within the conceptus at that stage, but two of these may have come from the ovum by division of the ovum without fusion and, therefore, without fertilisation. I think that that issue makes the whole problem extremely complex. Therefore, I very much hope that a way can be found of protecting the conceptus within this early period without prejudice to the status of the embryo as defined in the Bill.
4.15 p.m.
The Earl of Halsbury: I referred to this point on Second Reading. I said then that I thought the Government had got the Bill right: that conception is not a moment in time, but a process in time. I should like to congratulate the noble and learned Lord on the lucidity with which he described the process of fertilisation. He did so in very simple language that we could all understand. Fertilisation should be completed at the right temperature. Therefore, is inserting a thermometer into the mixture an experiment? I shall return to that point later when dealing with my definition of an experiment.
In our ordinary lives we are not accustomed to processes which have no definable or identifiable beginning. Yet, we know that if we wake up with a cold in the head and with a runny nose it could develop into bronchial pneumonia and we might die. There is an identifiable end to life, but not necessarily an identifiable beginning to one's terminal illness. Indeed, one may have picked up the bug the day before but one does not know when or from whom. The process of fertilisation is something which has no identifiable beginning. Quite apart from the process of contact between the egg and the sperm, there is a prior process of chemotaxis in which the sperm swims up, as it were, a concentration gradient towards the ovum which is emitting something which attracts it —much as moths can be attracted from very great distances by the odour of a female moth.
The process of penetration is not like sticking a drawing pin into a piece of paper; it is a process of mutual digestion between the skin of one and the skin of the other. It again is a process of time which has no identifiable beginning, and so I cannot support the amendment. If the noble Baroness chooses to divide the Committee, I shall have to go into the Lobby against her.
The Lord Bishop of London: Following what the noble Earl has said, I should like to make one general point. It is true, as he says, that there are many situations in human life where we are involved in a process. The taking of any point in that process is, to some extent, an arbitrary matter. In considering the Bill, we are not involved in making scientific

725
definitions, extending scientific research, or anything of that kind. We are legislating. It is frequently necessary, where processes are concerned, to define a point for the purpose of legislation.
Perhaps I may take the simple example of marriage. Marriage is a continuing process. There are various elements within that process; but, nevertheless, for practical purposes, within human society it is necessary to define the moment at which people get married. All I want to suggest is that at various points in the Bill it may be necessary for us to make certain definitions. They may not be scientifically satisfactory and they may be to some extent arbitrary, but if we are legislating it is necessary to do so. I hope that we shall not shrink from that and fall back into a kind of vague process—theology, as one might say—merely to avoid making such definitions.
Lord Adrian: I shall follow along the lines taken by the right reverend Prelate. I too am concerned about the definition of terms in legislation and their meaning in the Act, as it will be. We need a term to describe the early stages of the process; that is, after the sperm has entered the egg, and the first appearance of what might, in a sense, biologically be called an embryo. The word "conceptus" has been used by the noble Baroness, Lady Elles, and by the noble Lord, Lord Walton. It is a good term. It is one used by embryologists when they wish to define the particular period while the chromosomal material from the mother and the father is being reorganised into the potentiality of a new individual. The conceptus can be thought of as a blueprint, and the embryo can be thought of as the individual growing which results from the blueprint having been achieved.
The process of achieving the blueprint (the plan) is complicated and risky and one can tell that it has come to an end at the first division into the two-cell zygote; but the point about using the word "conceptus" is that in that stage the fertilised egg is a concept of an individual and not the individual. It is only when the blueprint has been achieved and the building begins —one brick being laid on the next —that one can say that the embryo starts.
It is important —this is the point that the right reverend Prelate was making—in legislation not so to stretch the words into new definitions that there are unforeseen consequences. I entirely agree that if research is lost and is to be banned, which I believe would be a great tragedy, it is important that the 30-hour period be covered. I understood the noble and learned Lord the Lord Chancellor to say that the Government are prepared to consider that point and will come back with appropriate amendments.
Baroness Elles: I should like to express my gratitude to all noble Lords who have taken part in the debate on the amendment to Clause 1. It is, as has been evident from noble Lords who have spoken —especially those with scientific experience —a difficult matter. I am therefore extremely grateful to my noble and learned friend the Lord Chancellor for the way in which he has approached it. He has undertaken that it will be
726
looked at again. I hope that the 30 hours will be covered in some way, thus reflecting the views of some noble Lords, and that the subject will come back on Report. If the amendment is not satisfactory, it is understood that I reserve my right to table some other amendment, possibly along the lines discussed this afternoon. On that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch: This will be a convenient moment for the House to hear the Statement, and therefore I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Criminal Justice Proposals
4.26 p.m.
Earl Ferrers: My Lords, it may be for the convenience of your Lordships if I repeat a Statement which is being made by my right honourable friend the Home Secretary in another place about the Government's proposals for criminal justice legislation, which we are publishing today in the White Paper Crime, Justice and Protecting the Public: The Statement is as follows:
"In preparing these proposals for a coherent legislative framework for sentencing, our aim has been to ensure that offenders are punished according to the seriousness of their crimes and receive their just deserts, and to see that the public are properly protected. Really serious crime, particularly serious violent crime, has to be followed by really severe punishment and I am sure the House would agree that the right punishment for serious violent crime is a long prison sentence. But we know that prison can all too often reinforce criminal habits, and many more less serious offenders could be punished in the community where they can repay their victims and do tough and demanding work for the community.
"It is therefore important that the judges should, before passing a custodial sentence, satisfy themselves that no other course is right; and it is important that realistic options for punishment in the community should be available with those options presented clearly to the courts. We therefore propose, first, that the Crown Court should have a new power to impose a longer sentence on a persistent violent offender than would be justified solely by the seriousness of the immediate offence in order to protect the public from serious harm from him; but the distinction between violent crime and property crime should be more clearly marked by changes in the maximum penalty for theft from 10 to seven years and in the maximum for non-domestic burglary from 14 years to 10 years; the maximum for burglary from a persons' home quite rightly would remain at 14 years; secondly, that new legislation should require a court to consider whether the

727
offence is so serious that only a custodial sentence is justified. For all but serious offences the court would be required to give reasons for passing a custodial sentence and would have to consider a probation report setting out options for punishment in the community before doing so.
"We further propose to increase the courts' powers to impose community penalties. There would be a new power to combine community service and probation. Community service ensures that the offender makes reparation to the community through unpaid work. Probation gives offenders an opportunity to sort out their problems and to lead a law-abiding life in future. We do not think that one should exclude the other. The courts would also, and additionally if appropriate, be enabled to make curfew orders, with monitoring, to keep offenders at home and away from their criminal associates, at particular times of the day.
"We plan new national standards for the most important aspects of the probation service's work, including preparing reports for the courts and running probation centres. We shall shortly publish consultation documents about some of these standards and about the future organisation of the probation service. We believe that the probation service should make more use of voluntary organisations and the private sector to carry out its increased responsibilities effectively. The probation service will, however, keep its central role in supervising offenders and ensuring that court orders are carried out.
"Many offences can be dealt with adequately by financial penalties. The priority should be offenders paying compensation to their victims. But fines could be used effectively for more offences if they were assessed in units according to the seriousness of the offence and then converted into money according to an offender's means.
"We believe that custody should be reserved for the most serious offenders. We can only justify spending well over £1,000 per month in housing, feeding and clothing a criminal, we can only justify depriving an offender of the opportunity to maintain his family, compensate his victim or make reparation to society when the offence is so grave that there is no realistic alternative to imprisonment. But when prison is the right and proper sentence then it is essential that the sentence served should be more closely related to the sentence passed and we are going to introduce new parole arrangements based largely on the recommendations of a committee set up to review parole arrangements in England and Wales and chaired by my noble friend Lord Carlisle of Bucklow. The Government are most grateful to my noble friend and his committee for their really valuable work.
"This would be the effect of the changes: first, remission, which at present reduces most sentences by a third and which is in addition to any parole granted, would be abolished. All prisoners would spend at least half their sentence in custody whereas at present most can be released
728
after one third; secondly, those serving up to but not including four years' imprisonment would have to serve half their sentence, followed, except in the case of sentences under a year, by a period on licence under supervision; thirdly, those serving from four years up to but not including seven years would serve at least half their sentence and would then be eligible for release on a selective basis until they have served two thirds of their sentence. The decision on this would be delegated to the Parole Board. When released they would be under supervision until three-quarters of their sentence has expired; fourthly, those serving seven years or more would be subject to release on a selecive basis after half their sentence but the final decision will rest not with the Parole Board but with the Secretary of State.
"The decision whether or not to release a person on parole would be clearly based upon the risk to the public of that person committing a further serious offence. We intend to take new powers to give policy directions to the Parole Board so that we can lay down these criteria. This should make for greater consistency in the decisions to release, the conditions of the parole licence and the arrangements for supervising prisoners after release.
"If a released prisoner is convicted of a further imprisonable offence before the end of his sentence, the court would be able to return him to custody to serve out the remainder of that first sentence in addition to any sentence it gives for the new offence.
"There are important proposals in the White Paper about young offenders. The juvenile court would become a youth court and would deal with offenders aged 17 as well as those aged 16 and under. We intend to increase the powers of the courts to make parents take greater responsibility for the offences committed by their children under 16. In particular we intend to require parents to attend in all cases when their children are brought before the court on a criminal charge and we are going to make it possible for the magistrates to take into consideration the means of a parent in deciding on the appropriate fine.
"The Government firmly believe that in all we do we should have at the forefront of our minds the victims of crime and it is time to spell out what victims are entitled to expect and the help available to them and to consider what more needs to be done. We shall therefore on 22nd February, European Victims Day, publish our Victims Charter. But the proposals I have outlined today should make sure that criminals are properly punished.
"These proposals point to the most fundamental and far-reaching changes for at least half a century in the way we publish offenders in this country. They are part of our wider policies on crime with the greater emphasis we have given to crime prevention and more help and support for victims. They offer just deserts to the offender and reassurance to the law-abiding citizen."
My Lords, that concludes the text of the Statement.
4.35 p.m.
Lord Mishcon: My Lords, the House will be grateful to the Minister for repeating a most important Statement on a most important White Paper. The aims of that White Paper—namely, that those who commit violent crime should be adequately punished —must be right, and that part of the White Paper that deals with the protection of the public must be right. When I talk in terms of violent crime I obviously include violent sexual crimes as well.
We listened to this Statement and to the White Paper against a background that has been mentioned so often in your Lordships' House; namely that we have the largest number of prisoners in Europe both in absolute terms and in proportion to our population. The House will therefore be interested to see how far this White Paper deals with that problem.
The phrase at the beginning of the Statement is used correctly:
"we know that prison can all too often reinforce criminal habits".
I looked in the Statement for a reference, presumably to be made in the White Paper, to what one does about the serious problem that we have of recidivism and in regard to our necessary task of rehabilitation. I found no reference to that important matter. I saw no reference to the afer-care of prisoners when they come out in order to try to stem the tide of recidivism. I wonder whether the Minister when he replies would tell us whether there are any progressive measures aimed to deal with that important matter, especially, as I have said, when one considers the numbers in our prisons.
The Carlisle committee —that presided over by the noble Lord, Lord Carlisle —was mentioned in the sense not only of dealing with remission but of making prison sentences more realistic in regard to the sentences imposed. We shall have to reflect upon that measure and again, as I say, look to see what effect it is going to have upon the overcrowded prisons that we have at the moment.
Probation officers have been mentioned. I think of them at once in regard to after-care and rehabilitation. Can we be quite sure that the role that is being set for probation officers will in no way demean their status and certainly not interfere with their very honourable and useful position in society as being the friends, and advisers and supervisors too of those who are in prison and come out of it?
I think that all of us are interested in the problem of juvenile crime. After all, it is unfortunately the juveniles, the young people, who contribute most to the numbers of criminals we have in this country, which is a very regrettable state of affairs.
We were all interested in the idea of the youth court incorporating those who are 17. That seems to me to be a useful step. There was reference to parents being brought into court and into the criminal situation which surrounds their children. That is absolutely right, not so much from the point of view of making parents responsible for the crimes of their children, unless the lack of parental care or the surroundings at home are responsible for the
730
criminality of the children, but of trying to establish a partnership which could and should exist between court and parents in order to try to save juveniles from a life of crime. That is obviously an important measure.
Victims of crime were mentioned. I was happy to see that the Statement drew particular attention to that matter and to a celebration that will take place in regard to victims of crime. However, will the Government remember that the Criminal Justice Act 1988 reduced and in some cases removed compensation for victims of crime? Will the Government also remember that the minimum threshold for those entitled to claim compensation was reduced, thereby removing the right to compensation from some 10,000 people a year?
In drawing attention to these matters I do not wish it to be thought that my remarks are unnecessarily critical of a White Paper which has many good features about it. That is obvious from the Statement. However, there are matters to which attention should be drawn because they are so important. I end with the reference to consistency of sentence. The public, perfectly reasonably, are perturbed about the inconsistency and at times complete unreasonableness, as they see it, in the two extremes of too much leniency or too much severity. There does not appear to be a consistency which can be agreed. I say that most respectfully as regards the judges as I know they meet from time to time, indeed it would appear almost continually, in order to deal with sentencing policy.
If we are sincere, as I am sure the judges are, in saying that we want to protect the public, to reduce crime in this country, to ensure that our prisons are not overfilled and to ensure that justice emanates from the way in which sentences are imposed, should there not be a sentencing council which meets regularly and continuously and which would deal consistently with sentencing policy? That would not only afford justice but also help in reducing the shocking figures of crime in this country as all of us would wish.
Lord Harris of Greenwich: My Lords, I join with the noble Lord, Lord Mishcon, in thanking the noble Earl for repeating this Statement. I, too, think that there are a number of sensible proposals in the document. However, it would obviously be premature to express an opinion on many of them without having had the opportunity of reading the White Paper. The White Paper deserves to be judged by three tests. The first is whether it will bring down the size of our inmate population. As the noble Lord, Lord Mishcon, has observed, we have the highest prison population in Europe. That is, unhappily, nearly the only European league table of which this country is top.
Secondly, in aiming to give effect to that reduction in the size of the inmate population, have the Government put forward enough non-custodial alternatives to imprisonment, including parole, which will give some guarantee that many of those now held in custody could be transferred to the community? Thirdly, on the matter of victims, I

731
welcome very much the fact that the Government will bring forward a victims' charter. They have, to be fair, made substantial sums of money available to the National Association of Victim Support Schemes. We all welcome that and look forward to the publication of the victims' charter.
That brings me to the references in the Statement to the Carlisle Committee's report. I should indicate some satisfaction that a number of the recommendations of the committee have been accepted. Is the noble Earl aware of our delight that it appears that the truly deplorable new parole policy introduced by Sir Leon Brittan when he was Home Secretary is no more? Many of us opposed that policy when it was introduced. The Government never found it possible to give any coherent explanation in this House or elsewhere as to why such a policy should be introduced by means of administrative fiat. We are delighted to see the end of that policy. I should say in passing that at a moment like this it is right to remember the member of the parole board, Dr. Julian Candy, who resigned publicly over the introduction of that policy.
Does the Minister recall that the Carlisle Committee drew attention to the fact that there was a risk that, even if all its recommendations were accepted, the numbers in prison could increase unless there were substantial changes in sentencing policy? It would be of immense help to us if the noble Earl could indicate whether the statistical branch of the Home Office has been able to give Ministers some outline estimate of the effects of the introduction of this policy. As we all know, Home Office statisticians have had that responsibility in the past when changes of criminal justice policy have been introduced. I should be grateful if the noble Earl could tell me whether they have been asked to make any estimate on this occasion.
On the point made by the noble Lord, Lord Mishcon, have there been discussions with the judiciary to give some comfort to Ministers that the acceptance of many of the recommendations of the Carlisle Committee will not lead to an increase in the size of the prison population?
I must indicate also our welcome of the fact that, other than in the more serious cases, judges and magistrates will be required to give reasons for a custodial disposal rather than a non-custodial one. That is substantial progress and I very much welcome it. Is the Minister also aware that we unreservedly welcome the reduction in maximum sentences for burglary and theft? That is altogether admirable. We find it easy to do that given the fact that we introduced just such amendments to the last criminal justice Bill when we were firmly opposed by the Government. We welcome them as converts to our cause.
I have one question on sentencing. The noble Earl indicated that there would be a new power to impose longer sentences on those whom I believe he described as persistent violent offenders. Certainly all of us recognise that there is a need to deal with such offenders in a most vigorous fashion, but will the noble Earl indicate how this new penalty will be distinguished from the former sentence of preventive
732
detention which had to be scrapped because it was an abject failure?
On the matter of probation, most of us welcome the fact that there are to be consultation documents on the future of the service. I should be grateful if the Minister could give me some indication of when those will be published. Will they be published before Easter, for instance? It would be helpful if the Minister could tell us that. He will realise that there is a particular reason for that question. Given the fact that relations between the probation service and the Government could hardly be described as particularly warm, the sooner there is some clarification of the future of the service the better.
Finally, it will be our desire to be as helpful as possible when the Bill on criminal justice eventually reaches this House, as I assume that it will in the next Session of Parliament. As we know, we have immense problems in our prisons. We also have extremely strained relations between the Government and our most important non-custodial organisation, the probation service. Nevertheless, having said that, we can all give a welcome to many of the proposals in the document which I believe will have beneficial effects.
Earl Ferrers: My Lords, I am most grateful for the welcome which the noble Lords gave to the Statement. I was particularly grateful to the noble Lord, Lord Mishcon, for saying that the aims must be right and that the protection of the public must be right. That is clearly most important. He was concerned to know whether the large prison population is likely to be reduced as a result of the White Paper. All I can tell him is that we hope that it will, but it will take time to see how the changes work out. The intention is that people who commit less serious crimes should undergo their punishment in the community and not in prison. That should help to reduce the prison population.
The noble Lord was concerned about recidivism and rehabilitation. That is a matter which is always at the forefront of our minds. I remind the noble Lord that many steps have been taken, not least through the probation service, which exists to help in that respect. We believe that if people are able to serve their sentences within the community and not fall into the hands of professional criminals in prison the chances are that fewer will return to crime.
The noble Lord, Lord Mishcon, referred to sentencing councils. Obviously it is desirable that there should be a reasonable amount of continuity in sentencing. We do not believe that sentencing councils are the correct solution. A variety of guidance is available to judges and that will be supplemented by the framework that we propose.
The noble Lord, Lord Harris, referred to what were described as the Brittan proposals. He said that they had not been particularly liked by some. It is the Government's intention to abolish them because we believe that what we are setting up in their place will be much fairer.
Both noble Lords were concerned about the probation service. The noble Lord, Lord Mishcon, hoped that the roles given to the probation service

733
would not demean its status. It is not our intention to demean the status of the probation service. We consider that it does an enormously important job of work. We should like to see its work expanded so as to cover the matters to which the White Paper refers.
I can assure the noble Lord and the noble Lord, Lord Harris, that the Government will be issuing a Green Paper in the near future. The noble Lord, Lord Harris, asked whether that would be before Easter. I can tell him that it will be in the near future and he will have to decide whether Easter comes within that category, but he may be surprised by how quickly it arrives.
The noble Lord, Lord Harris, also welcomed the proposed alteration in sentencing for burglary and theft. The reason for those changes is that in 1988 there were only two cases of non-domestic burglary in which the sentence was more than seven years. That is why we considered that it would be appropriate to reduce the maximum sentence from 14 years to 10 years. Similarly, very few people receive sentences of more than five years for theft. Therefore we regarded it as appropriate to reduce the maximum sentence from 10 years to seven years.
A number of other points were made, but in view of the other business of the House I believe that it would be inappropriate to answer all of them. However, I shall refer to compensation, which was mentioned by the noble Lord, Lord Mishcon. Applications to the Criminal Injuries Compensation Board have more than doubled, from less than 23,000 in 1979–80 to an estimated figure of over 55,000 10 years later. It is our desire to see that people are adequately and properly compensated.
Both noble Lords referred to a number of other points. I hope that it will be acceptable if I write to them rather than delay the House in its consideration of the matter before it, which was interrupted by the Statement. I am grateful to both noble Lords. The Statement sets out a major shift of emphasis in criminal justice. It will be necessary for your Lordships to consider the White Paper in full because it is a far-reaching document.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that a great many people who are deeply disturbed by the incidence of crime in this country —and most ordinary people are very worried about it —will welcome the Statement and the White Paper as indicating a determination by the Government to come to grips at least with some of the problems?
Is he also aware that some people —certainly myself—welcome the fact that the Government are now taking a grip on the parole system? He may recall that over many years I have raised the question, without getting much response. I am therefore delighted to see the action now being taken.
Is my noble friend also aware that it seems very good sense to require parents to attend court when young children appear on a charge? It is only remarkable that that has not been a compulsory provision for many years.
734
As I listened to my noble friend, my only doubt was whether it is wise to make the proposed substantial reduction in the maximum sentence for theft. I accept that, as he said, most theft charges carry a sentence well below that figure. However, there have recently been one or two spectacular thefts running into millions of pounds. I wonder whether it is wise, knowing that such thefts will continue, to reduce the maximum sentence and therefore possibly the overall deterrent effect. Is it not worth considering retaining the present level of sentence solely to deal with those exceptional but very dramatic cases?
Finally, perhaps I may echo what the noble Lord, Lord Mishcon, said about consistency of sentences. I accept that many criticisms of inconsistency in sentences derive from lack of knowledge of the circumstances in a particular case. It is very easy to criticise sentences when one does not know the full facts. Nonetheless, is my noble friend aware that some people feel that there are extremes in sentencing, both ways, and that so me method of persuading the judiciary to adopt a somewhat more consistent line on sentences would be very acceptable to public opinion and undoubtedly in the public interest?
5 p.m.
Earl Ferrers: My Lords, I am grateful to my noble friend Lord Boyd-Carpenter for his welcome of the Statement. I know that he has always been much concerned about the effects of crime. I am glad that in particular he approved of the proposal that parents should attend court. The purpose is to involve parents with what their children do, not only for the purposes of rehabilitation but also when the children offend against the community.
My noble friend referred to the reductions in sentence and asked whether it would be right to keep the maximum sentence. We thought it right to reduce the maximum sentence for the reasons that I gave; namely, that few people are at present given the maximum sentence. There therefore seemed to be relatively little point in keeping the maximum sentence at that level. However, combined with that is the hope that the sentences served will bear much more of a relationship to the sentences passed than has been the case heretofore.
I understand my noble friend's concern that sentences are not always apparently common as between one court and another. That matter always gives concern. The judiciary is also concerned about it, but, as my noble friend rightly said, it is a matter for the courts to sentence as they think appropriate. It is therefore difficult to be too dogmatic as to what the sentence should be. However, the judiciary and those involved with it are particularly concerned that there should be as reasonable an amount of commonality between sentences as is possible.
The Earl of Longford: On first hearing, I cannot make up my mind whether the proposals will do more good than harm. For reasons implicit and to some extent explicit in the remarks of my noble friend Lord Mishcon and of the noble Lord, Lord Harris, if judges persist in their present sentencing attitudes the proposals will undoubtedly increase the

735
numbers in prisons. That follows from the Carlisle Report and other discussions. There is no question about that. The issue is whether the judges will not only be asked to be slightly more consistent, as suggested by the noble Lord, Lord Boyd-Carpenter, but whether they will be asked to pass less extreme sentences. It is not by accident that we have the highest prison population; it is because the judges in this country pass the most severe sentences. In view of the remarks of my noble friend Lord Mishcon and of the noble Lord, Lord Harris, what steps, if any, does the noble Earl propose to take?
Earl Ferrers: My Lords, I should have thought that of all people the noble Earl, Lord Longford, would have been pleased with the White Paper because it does what he has advocated for a great many years; namely, that people who have committed offences should serve much of their sentence outside prison rather than inside it. I could not resist a wry smile when the noble Earl said that the fact that we had the highest prison population in Europe was entirely due to the judges. They are responsible for sentencing, but those people who go to gaol usually do so because of what they have done, not because of what the judges have done.
I was surprised that the noble Earl said that he did not know whether the proposals would do more good than harm. No one can know that. However, it is the Government's intention that the White Paper will do a great deal more good than harm for the very reasons I have given; namely, that those who commit lesser offences will not become so much involved in prison with those who have committed greater offences and will serve their sentences outside. On the other hand, those who commit bad offences should serve their sentences more in keeping with the sentences which have been passed.
Viscount Whitelaw: My Lords, is my noble friend aware that anyone with experience of the Home Office over the years is bound to find that there is a great deal to welcome in the proposals put forward today? On the whole, I support them strongly.
However, perhaps I may ask my noble friend whether he appreciates that the importance of the state of our prisons today is crucial. If we do not pay attention to it, it will cause a great deal of trouble in the future. Over many years successive Home Secretaries of all parties have made strenuous efforts one way and another to improve our prisons. None of us can say anything other than that the prison population in this country has risen inexorably until it has reached the stage at which it is not only dangerous but wrong for our society. It is always worth remembering—perhaps my noble friend will comment on this point —that any nation which neglects the state of its prisons and of the prisoners in those prisons is not a society as it should be. We in this country must take that point seriously into account.
Earl Ferrers: My Lords, I am grateful to my noble friend for his comments. It means a great deal to those who are in the Home Office that someone with
736
his experience of the Home Office should welcome the Statement. I recognise the problem about prisons to which he referred; namely, that a state which neglects its prisons and those in the prisons is on a difficult course. We agree in toto with that point. A great deal, although not enough, has been done to resolve the problem about which my noble friend is so concerned for the very reason that, if those aspects of our society are neglected, they will cause more trouble later.
Lord Hunt: My Lords, perhaps I may add a brief word of welcome to the Statement on two grounds. The first concerns the reference in the Statement to the report of the noble Lord, Lord Carlisle. Here my reasons differ from those of the noble Lord, Lord Boyd-Carpenter. As I understand the Statement, the Government give substantial confirmation and support to the findings of the report. Speaking personally from a background at the Parole Board, I was delighted to learn that the work of the Parole Board over the years is to be confirmed and in certain important respects strengthened. In that connection, perhaps I may ask the noble Earl one question. According to page six of the Statement, for those prisoners serving more than seven years the final decision in the selective process for additional release on parole will rest with the Home Secretary and not with the Parole Board. May I take it —I hope that this is the case —that the advice of the Home Secretary regarding selection will nevertheless come from the Parole Board?
While I am on my feet, perhaps I may ask another question on a note of concern arising from the reference to the probation service made by the noble Lord, Lord Mishcon, and the noble Earl. With regard to the social work skills and highly successful results of the probation service in helping prisoners to return to society, there is a reference on page three to the powers of the courts to make curfew orders and to monitor prisoners in the community at various times of the day. As the noble Earl well knows, that is a matter of great concern to the probation service as it appears to conflict with the service's social work. Have the Government in mind any alternative means by which those surveillance jobs may be done?
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Hunt, for his welcome and the fact that he approves of the confirmation of the report produced by my noble friend Lord Carlisle and his committee. He was concerned about the responsibility resting with the Home Secretary and whether those people serving longer sentences were to be released. The philosophy behind the proposal is that those released into the community, and the public hazards that might therefore be created are a responsibility for the Home Secretary who will of course take advice from the Parole Board.
The details regarding curfews and monitoring to which the noble Lord referred have yet to be worked out. If those who have committed certain offences are kept away from their associates at the time when they are looking to be re-associated with them through a curfew, for example, the chances of those

737
people re-offending by getting back into bad company will be lessened. Obviously the exact details of how that will happen have yet to be finalised.
Lord Hailsham of Saint Marylebone: My Lords, I should just like to say two or three sentences to my noble friend. I do not know whether one can ever reform a man's character by depriving him of his liberty but I should have thought that it was extremely doubtful. What is quite certain is that a man's character can be debased by the conditions that he has to endure while he has lost his liberty.
I should like to reinforce the words of my noble friend Lord Whitelaw, who has far more experience than I. The conditions in our prisons are not simply a function of the numbers in them or even the numbers of prison places available. It is the actual conditions of the prison regime which in my opinion are degrading to the human character.
I should like to say a few words in favour of the judges, who seem to me to have been unjustly criticised. Those who say that we above any other country in Europe send more people to prison may be statistically correct. However, they must also ask themselves whether the pattern of crime that is being committed at this time on an increasing scale inside this country in some ways is not worse than that of many of our European neighbours.
Obviously judges need to pursue a consistent sentencing policy. No doubt my noble and learned friend on the Woolsack is the recipient of the same kind of postbag that I received from people, sometimes from Members of the House of Commons who ought to know better, who believe that the Lord Chancellor orders judges about like a regimental sergeant major telling them what to do. That is of course not the case. However, I received nine complaints of undue leniency to every complaint of undue severity.
I do not know the answer to these questions and I doubt whether many other people do either. My own conviction may be described in two precepts: first, the disposal of a criminal case can never be judged until, at the very least, the transcript has been read; secondly, the court of Appeal has and ought to perform the function of imposing —except in the case of a few eccentrics (who exist in any group of several hundred people) —consistency of sentences and the proper kind of disposal for particular crimes which is expected of judges.
Earl Ferrers: My Lords, I understand my noble and learned friend's doubt about whether a person's character can be reformed by depriving him of his liberty. It is something that is always very difficult to discern. However, society has a right to be protected from those who commit the most serious crimes. That is why such offenders have to be removed from society. My noble and learned friend is entirely right to say that, having removed them from society, they then have to be held in conditions which are acceptable to both society and themselves. That is desirable. My noble and learned friend will realise, as indeed will other noble Lords, that it is a vast
738
task. However, it is one to which we have set our hands.
My noble and learned friend produced an image of the noble and learned Lord the Lord Chancellor regimenting judges like a regimental sergeant major. I imagine that the Lord Chancellor would be given fairly short shrift if he tried to do that to any judge. However, my noble and learned friend is quite right to say that people expect consistency and therefore will write, I assume, to the Lord Chancellor of the day to complain when in their opinion the sentences passed have not been consistent. But I know, as do my noble and learned friends, that as a whole judges are concerned to ensure that there should be a reasonable degree of similarity in sentences passed for similar crimes; but within that judges must be free to pass whatever sentence they think is correct.
5.15 p.m.
Lord Carlisle of Bucklow: My Lords, perhaps I may apologise to my noble friend for the fact that I was not in the Chamber when he started to repeat this Statement. Having had an opportunity to look very quickly at the White Paper, I understand that he has accepted the vast majority of the recommendations of the committee which I had the honour to chair. I should like to thank him very much for that. In fact I believe that what the committee proposed with regard to parole is a far more coherent pattern for sentencing than exists at the moment.
I believe that we have removed substantially the disparity that existed between what the judge said and what happened in practice. I believe that our proposals give a meaning to the totality of the sentence that it did not have before. I remind my noble friend that so far as concerns shorter sentences, the committee believed that its proposals would restore judicial confidence in the release mechanism. However, it also believed that implementation should go hand in hand with a determined effort to reduce the length of the shorter sentences in view of the fact that meaning is now to be given to the whole of the sentence. I hope that the Home Office has not ignored that point.
Finally, with regard to longer sentences, I welcome, as I know all members of the committee will welcome, the acceptance by the Home Office of our recommendation that in future parole should be based on review of the length of sentence that the person had had passed rather than the type of offence of which the person was convicted.
Earl Ferrers: My Lords, I am very grateful to my noble friend for his remarks. I can assure him that the concern that he expressed has not been lost on the Home Office. He and his committee have produced a report that has enabled us to find the right way forward. We have accepted the majority of the committee's recommendations. Quite clearly it will be necessary for some of the sentences to be lowered; otherwise the prison situation will be even worse. However, that is a matter for the judges.
If my noble friend's thesis, on which the report was based, comes out correctly, we should end up with people serving sentences which are more

739
appropriate to the sentence passed, the sentences being passed being slightly less than has been the practice before and many more people spending their "reforming time" outside prison than inside.
Lord Denham: My Lords, I think that it would probably be the wish of the House to resume as soon as possible the Committee stage of the Human Fertilisation and Embryology Bill. I know that the noble Baroness, Lady Phillips, wants to speak. I suggest that she make her intervention and after my noble friend has replied we resume the Committee stage.
Baroness Phillips: My Lords, I follow the rules of procedure which, I am sorry to say, other noble Lords do not appear to have done. I understood that one puts questions on a Statement. I welcome the Statement. I should like to ask the Minister whether the Government will consider ensuring that the amount of money that they give to the resettlement of offenders will always be balanced against the money that they give to the victim support schemes? In every crime there is an offender and a victim. I regret that the noble Earl referred to "less serious offences". As I said before, to the person against whom an offence is committed, all offences are equally serious.
I hope that, in giving guidelines to the magistrates, the Government will be extraordinarily clear that it is becoming increasingly difficult for those who act in a judicial capacity to decide whether they are carrying out the sentence that the offence deserves or whether it is a sentence that will be acceptable to the Government.
Earl Ferrers: My Lords, I do not think that it is a question of the sentence being acceptable to the Government. I understand the noble Baroness's concern but I could not possibly give her an undertaking that the same amount of money being spent on the resettlement of offenders will be spent on the victims. The two things are not necessarily comparable in money terms, although I accept that they are highly comparable in human terms. The way in which victims are compensated cannot be equated in monetary terms with what is spent for the resettlement of offenders. However, I understand the noble Baroness's concern.

Human Fertilisation and Embryology Bill [H.L.]
5.20 p.m.
House again in Committee on Clause 1.
[Amendment No. 4 not moved.]
Clause 2 [Other terms]:
The Earl of Halsbury moved The Earl of Halsbury moved Amendment No. 5:
Page 1, line 19, at end insert —
(" "experiment" means any procedure physical, chemical or biological whose outcome is not sufficiently certain as to make it unnecessary;").
The noble Earl said: I speak also to Amendment No. 6, which is grouped with the amendment. These are definitions that I gave at Second Reading as to what "experiment" and "project of research" meant to me. It seemed to me after that that it would be good to have them in the body of the Bill for reference. In that context perhaps I may appeal to the noble and learned Lord that the Bill be rearranged so that all the definitions appear in one place as an index, possibly with an asterisk as to their first occurrence. That would be a great help for anyone studying the Bill. It is complicated enough.
I await any comment from the noble and learned Lord or any of my scientific colleagues in the Committee as to whether or not they believe that I have drawn these definitions in acceptable terms. I have tried to draw them as widely as possible. For example, sticking a thermometer into something to tell the temperature when one does not know the temperature is an experiment of a kind. Another one —to which I can refer at a later stage of the Bill —is feeding an embryo with a little glucose and measuring its lactic acid output on the basis that the most active embryos are probably the most suitable for implantation. That again falls within my definition of "experiment". I beg to move.
The Deputy Chairman of Committees (The Earl of Listowel): I beg the pardon of the Committee. I should have put the question first, That Clause 1 stand part of the Bill?
Clause 1 agreed to.
The Lord Chancellor: The Government have not included a definition of research in the Bill because they believe that for the purpose of the Bill it is not necessary and indeed is undesirable to do so. We have the feeling that the word "research" is probably as clear as any substitution for it. The same is true of "experiment".
It is not easy to deal with the matter in a very comprehensive way. However, I take one example. I read with great interest the definition of "experiment" that the noble Earl has put forward. Would it include growing up, for example? I refer to the ordinary process of a child becoming an adult. I am not sure. However, that is a test of the definition.
The "project of research" has as its main idea in the definition of the noble Earl, Lord Halsbury:
"any experiment or observation or sequence thereof designed to establish knowledge of the subject matter to which such experiments or observations are directed".
It has been suggested to me that to establish knowledge may be one thing. One may also have a project of research intended to apply what one has discovered to some other situation. It is open to question whether, if one is seeking to apply the knowledge one has already discovered to a new situation, one is seeking some knowledge of that situation. We feel that the word "experiment" and the idea of "project of research" are sufficiently clear to make it unwise to define them further. It may not be easy to hit on definitions for either of these that are all-embracing and add to the clarity of the phrases themselves.

741
I know that the noble Earl may have a different idea. I put these matters forward for his consideration.
The Earl of Halsbury: I do not wish to fight this as a matter of principle. I am not an expert on the drafting of legislation. The noble and learned Lord is. If he tells me that it is unnecessary, I am prepared to accept that.
Knowledge covers how to do something, or to make something, or to understand something; and that is that. I do not know whether or not growing up is a procedure. The noble and learned Lord and I are at one on that. I beg leave to withdraw the amendment standing in my name.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 7:
Page 1, line 24, after ("provided") insert ("to the public or a section of the public").
The noble and learned Lord said: This is a government amendment. The idea of the amendment is to make it clear that the Bill is not intended to apply to self-administered treatments. It has been suggested to us that Clause 4(1)(b), which prohibits the use of a man's sperm in the course of providing treatment services except in certain circumstances where a person is licensed to do so, would make self-administered treatment unlawful. By amending the definition of "treatment services", it is intended to make it clear that the treatment services to which the Bill applies are those that are provided to the public or a section of the public. That is what the Government seek to achieve by the amendment. I beg to move.
On Question, amendment agreed to.
Lord Ashbourne Lord Ashbourne moved Amendment No. 8:
Page 1, line 24, leave out ("women to carry children") and insert ("a specified woman to bear a child").
The noble Lord said: In moving the amendment my contention is that the present definition of "treatment services" is too broad. It could be interpreted to mean almost anything since many procedures could be said to help women in general to bear children. Crucially, it could be interpreted to include research on the human embryo, thus pre-empting the decision of the Committee on Clause 11 that we shall be discussing in due course.
As with other forms of infertility treatment covered by the Bill, such as AID (artificial insemination by donor), the amendment will ensure that treatment is treatment and not research. It is to everyone's advantage that research and treatment are clearly distinguished. Whichever way the decision on embryo research goes, we shall need to dstinguish between the two. In essence, it is a drafting amendment to avoid ambiguity rather than a matter of policy. I beg to move.
The Lord Chancellor: I understand the purpose for which my noble friend has moved the amendment, but, with great respect, I question whether it assists the definition of "treatment services" as,
742
"medical, surgical or obstetric services provided for the purpose of assisting women to carry children".
The importance is to be given to the words
"provided for the purpose of assisting women to carry children".
I believe that it is plain that research is distinguished from treatment by that aim. The objective of research is not to provide a particular service for the purpose of assisting women to carry children where the services are medical, surgical or obstetric.
If the intention is to make the scope of control as broad as possible within the limits of the general policy of the Bill, I believe that it is not wise to seek to limit the definition of treatment services, because that is the basis on which one aspect of the control is to be exercised.
In the light of these considerations, my noble friend may feel that the amendment does not exactly serve the purposes that he had in mind when putting it forward.
5.30 p.m.
Viscount Caldecote: I should like to support my noble friend's amendment. If the Bill is left as it is surely all the research into making more efficient the methods of IVF would come under the heading. It is to assist women to carry children. Surely my noble friend Lord Ashbourne is right in saying that the provision would include a large measure of work which we normally regard as research. My noble and learned friend the Lord Chancellor has made clear that such work is not intended to be covered by the subsection.
The Lord Chancellor: It is important to notice the emphasis on the words "provided for". The Bill states:
"medical, surgical or obstetric services provided for the purpose of assisting women to carry children".
I believe that research, whatever it may be, would not be a service provided for the purpose of enabling or assisting women to carry children. The case may be that indicated in the definition put forward by the noble Earl, Lord Halsbury, which we have not yet incorporated; that is, some assertainment of knowledge, for example, in relation to what treatment services should be provided. The emphasis is on the object of the service as provided for the purpose of assisting women to carry children.
If the intention is to limit research, that would not be made clearer by the addition of the words "a specified woman to bear a child". It might be that the research would be directed to a particular woman. I do not believe that the amendment hits the mark which my noble friends are seeking. It is a difficult target and I believe that the matter may merit further consideration.
The Duke of Norfolk: I should like to make the matter more precise. The words were contained in the Unborn Children (Protection) Bill tabled by Enoch Powell in the other place. I more or less copied his Bill and brought it before your Lordships' House about a year ago. I had wide support on Second Reading but did not carry on with the Bill.

743
Such specification is required in order to draw a firm distinction between treatment and research. Treatment involves an embryo being produced to enable a specified woman to bear a child rather than for the purpose of enabling women in general to bear children. It could include research being carried out on the embryo which might enable other women at a later stage to bear children. We do not wish to see research carried out on embryos. If we define it as an embryo being created for a specified woman to bear a child, that embryo must be put into that woman.
Lord Milverton: I wish to support my noble friend Lord Ashbourne. As a result of the Bill one hopes to see what is lovely, noble, beautiful and true maintained. That is the reason why I support my noble friend and why I have great reservations about the issue. One wonders whether in the end what is noble, beautiful and of worth in a human being will be kept unless there is great spiritual insight among men and women.
Baroness Carnegy of Lour: In moving the amendment my noble friend said that it was important to make a distinction between treatment and research. If treatment is carried out in a certain place for a succession of couples, always in order to enable the specific woman in each case to carry a child, is properly recorded and the track record of the treatment through the years is observed, that becomes research. That has been pointed out to me by scientists who are doing that. A distinction cannot be made. Research does not begin and end in any one place; treatment is part of research. The amendment is confusing although I understand the intention of my noble friend.
Lord Somers: I have it on the highest authority that a professor of the Royal College of Physicians has laid down that, for example, in the case of cystic fibrosis, if one were to destroy every defective embryo holding a defective gene it would take 1,250 years to halve the incidence of the disease. In the case of other diseases it would take even longer. I believe that at present research on embryos is not of much use except for the purpose of enabling a woman to bear a child.
Lord Walton of Detchant: I support the view expressed by the noble and learned Lord the Lord Chancellor. However, Clause 8(8) provides that one of the functions of the authority would be to keep under review information about embryos and their subsequent development and the provision of treatment services. I understand why the amendment has been proposed but the term "treatment services" is extremely broad. It embraces a wide range of medical, surgical or obstetric services provided for the purpose of assisting women to carry children. That explanatory phrase does not refer to a form of treatment used for the benefit of a particular woman. It is a broad, inclusive term relating to services available to women in general.
The Lord Bishop of Manchester: I wish to add one further point. In trying to envisage how the provision will work in operation, I wonder whether it is true that if the amendment were passed one would have to hedge it around with further legislation to ensure that it did not become a farce. One can envisage that people may put forward the name of a specified woman in that way but with a wider purpose in their minds. I do not believe that the purposes behind the amendment can be achieved by the form of wording suggested.
Lord Stallard: I become more confused as the discussion goes on and I am trying hard to come to terms with some of the expressions and the points that are being made. However, I was not confused when I listened to the noble Lord, Lord Ashbourne, moving the amendment. It appears to be a reasonable attempt to tidy up an untidy provision.
The noble and learned Lord the Lord Chancellor confused me even further. He said that the provision was specific. However, I am worried about all experimentation on embryos and I believe that we must be specific. My fear is that the provision is not specific enough. If it was specific we may lose some of our fears in respect of other parts of the Bill. Therefore, to tidy up the matter at this stage appears to be a good idea.
It is a fair drafting point to say, "We should make this specific and enable a specified woman to bear a child". I believe that there is a difference between that and general research enabling any woman to bear any children. It ties it down. I assumed that that was what we were trying to do.
Also, as the right reverend Prelate suggests, I am assuming that all the people involved in this will be honourable. I know that that is perhaps not true at present in some places. However, I must assume that there will not be attempts to specify a woman's name for the purpose of an experiment in order to fiddle the books, as it were. I do not believe that that can happen; I hope that it will not happen and I certainly would not embark on a Bill with that in mind.
I believe that it is necessary if we are serious —and I am serious —about our fears as to experiments on embryos to be specific about what is to be specified as treatment and what is to be specified as research into more general treatment for wider application for women in general.
This amendment does not deal with what will happen to spare embryos; we shall come to that later on. That is another discussion. It can probably cover some of the aspects which we have missed in our discussions on this amendment. However, I thought that the amendment of the noble Lord, Lord Ashbourne, was perfectly reasonable and I support it.
Lord Kilbracken: Perhaps the noble and learned Lord could tell me when he comes to reply exactly what he sees as being covered by the phrase "carrying children" because it does not normally include either conception or childbirth although we have been talking as though bearing children is included in the phrase. Surely that is something quite different.
Lord Bridge of Harwich: Purely as a matter of drafting, it seems to me that the apprehension underlying the feelings of the movers of this amendment is quite unfounded. A court called upon to construe a definition section looks not only at the defining words but at the phrase to be defined. If a person who engaged in the kind of research which is thought to be offensive and at which in certain respects this Bill is directed sought to defend himself by saying, "Oh, I have only been engaged in providing treatment services provided to the public or a section of the public", he would never succeed.
Lord Brain: Is this not too restrictive? I understand that the process carried out in in vitro fertilisation requires the implantation of more than one embryo. If this amendment is carried, only one embryo may be implanted because a specified woman cannot be given more than one child. I suspect that the wording is defective.
5.45 p.m.
The Lord Chancellor: I am very sorry that my efforts to assist have only created more difficulty for the noble Lord, Lord Stallard. Perhaps I can have another try. He wants to make this specific. Of course there are different matters which one wants to make specific. I rather suspect that what is wanted by my noble friend who moved the amendment is something which makes it clear that treatment services will not enable research to be carried on, if research is prohibited, under the name of treatment. I believe that that is the point which my noble friend is making. I cannot see how it helps to specify in relation to a particular woman. That is the wrong kind of specification. The specification required should be directed at what is included in treatment. As I said earlier, that is why I believe that the phrase "provided for" is important.
This amendment was presented by my noble friend Lord Ashbourne as an amendment designed to deal with drafting. My noble friend the Duke of Norfolk referred to the Bill which he presented which bore somewhat of a resemblance to that presented by Mr. Enoch Powell in another place. There the policy would be described as rather different. There the idea was that a particular treatment would be licensed. The idea of this Bill is that the licensing authority will consider what it is that a particular clinic is doing and what the conditions should be and will grant the licence and then the clinic will deal with patients and treat them according to the licence.
If this amendment is passed the result will be that every licence must specify a particular person in respect of whom it is to be granted. That will do nothing to further the interests which were suggested as being behind the amendment of my noble friend Lord Ashbourne. It would create a quite needless and useless duplication, or indeed mutiplication, of bureaucracy.
I do not believe that I can make it any plainer than that. I can see that the more the matter is tied down, the more satisfactory it may be to some. However, one may be tying down the wrong thing.
746
If it is tied down to a particular individual, that does not assist in tying down what may be done in respect of that individual, which is really the matter being aimed at. We rely on the phrase "provided for" for that purpose.
These are difficult issues. I do not seek to pretend that this is easy. However, I am trying to warn the Committee against taking a course in wishing to tie something down which has the effect of making matters worse.
Lord Ennals: If it is any reassurance to the noble and learned Lord, I agree with every word he said.
The Duke of Norfolk: I hope that it is not out of order for me to speak now. I see that the Chief Whip is nodding. That does not always happen. I obviously have not explained myself properly. We do not like to see any experiments carried out on any embryo. However, the pro-life group agrees that there should be therapeutic treatment for the benefit of that embryo. We regard the embryo as a born child or a grown-up. Treatment can only be carried out on that born child or grown-up for its own good. That cannot be so if it is carried out for the benefit of other people. We put in this amendment —and it was in the Enoch Powell Bill —to try to limit it so that only an embryo which will be inserted into a woman can be treated for the benefit of that embryo.
Lord Hailsham of Saint Marylebone: I wholly agree with my noble and learned friends the Lord Chancellor and Lord Bridge of Harwich. The amendment is shooting at the wrong target with the wrong weapons. One can only construe a definition in an Act of Parliament by looking at the context in which the phrase is used in other sections. If you look for a moment at Clauses 4, 11 and 13 you can find that if you tried to apply the definition proposed in the amendment to any of those clauses you arrive at nonsense.
Lady Saltoun of Abernethy: I ask the noble and learned Lord whether he really believes that the word "carry" is appropriate in that context. It seems to me that the word "carry" could mean to carry in one's arms. I wonder whether the word "bear" may not be better.
Lord Robertson of Oakridge: It was my understanding of this amendment that, in stipulating that treatment services covered by the Bill should be given to specified women, that did not mean that separate licences, as the noble and learned Lord the Lord Chancellor said, would be needed for each individual woman. My understanding is that one licence would be issued to cover the treatment services which could be given to any number of women whose names would have to be entered on the appropriate record.
My only other point is that where I think that this phrase and the definition of it is terribly important is in Schedule 2, paragraph 1(1), where it says:
"A licence under this paragraph may authorise any of the following in the course of providing treatment services".
I understand that the choice we were to be given in

747
the equivalent of Schedule 2, paragraph 1, subparagraphs (1) and (2), was between some research and no research. When we looked at the phrase "treatment services" and married it up with the definition which is the subject of the amendment of the noble Lord, Lord Ashbourne, we felt that Schedule 1 allowed an appreciable amount of research, and that is what was at the back of the worry which led to this amendment.
The Lord Chancellor: My noble friend the Duke of Norfolk made it plain that he wishes the test of research, or the test of something that is not research, to be the purpose of assisting either the embryo itself or its development. That is exactly the emphasis that this definition has; that the treatment services are to be provided for the purpose of assisting women and not for anything else. They are to assist women to carry children.
The noble Lady, Lady Saltoun, asked whether the word "carry" is appropriate. I suggest that it is appropriate. The object is to create conditions under which an implanted embryo is in the uterus of a woman and it is to that purpose treatment services are directed.
With regard to what was said by the noble Lord, Lord Robertson of Oakridge, I can see that what is covered in paragraph 1 of Schedule 2 may require to be looked at. I can understand that he may have some questions about that, but I do not understand how putting the name of the specific woman into the definition would assist in that in the slightest. That is the problem. Naming the woman is perhaps the best way to simplify the amendment —it insists on naming the specific woman. How does that of itself restrict what can be done with embryos in connection with that woman? The answer is that it does not. It only creates unnecessary complications in licensing and has no bearing whatever on the list in paragraph 1 of Schedule 2.
The Earl of Perth: I have listened to the debate on this amendment and it seems to me that there is a very genuine worry on the part of those who tabled the amendment and those who have spoken in its support; that is, the question of the meaning of the word "treatment".
The noble and learned Lord the Lord Chancellor said that it means "to assist" and does not allow research. That may be, but I ask whether he will look at this matter again, not in any way to say that he accepts the amendment but to see whether the genuine fears of those who have spoken cannot in some way or other be allayed by a form of drafting of that sentence which refers to "treatment services".
The Lord Chancellor: I should like to make clear from the outset that I shall listen to everything that is said, take account of concerns and seek to meet them. All I seek to point out at this stage is that the suggestion made in this amendment does not appear to be directed effectively to meeting the concerns which prompted it. I shall certainly consider whether those concerns can be met in some other way as we proceed. I am not sure that this discussion has so
748
far suggested a way forward in that regard, but that is the situation.
Lord Ashbourne: May I say how grateful I am to all noble Lords for taking part in the debate on this amendment, and particularly to the Lord Chancellor for explaining the views of the Government so cogently.
I am not very happy because it seems to me —I am a simple man —that any amendment which is set to remove ambiguity must be a good amendment. I cannot see that allowing ambiguity into legislation can ever be helpful or useful. However, I shall read very carefully what has been said, and the Lord Chancellor has indicated he will look at the matter. I may come back at Report stage, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 9:
Page 2, line 2, after ("cryopreservation") insert ("and any other method of suspending animation")
The noble Duke said: At present embryos, sperm and to a lesser extent eggs are stored by cryopreservation —however that is pronounced; my attempt at pronouncing Greek is not good. I took Greek for six weeks; the class was cut in two and I was in the half that did not go on.
The Bill enacts time limits for the storage of gametes and embryos and also specifies that for the purpose of a time limit on experimentation, storage does not count. No other technique of storage is possible at present. However, such techniques may be developed in the future. It is advisable, therefore, to allow for this. This amendment allows for any other methods of suspending animation —that is, temporarily suspending the life process, growth and development —to be counted as storage for the purposes of this Bill. I beg to move.
The Lord Chancellor: When this Bill was drafted our information was exactly the same as that of my noble friend the Duke of Norfolk; namely, that cryopreservation was the only method of "keeping" that was available. We have used the word "keeping" in the Bill to accommodate any development of other methods of keeping that might arise. We want to make clear that the only one we knew of was cryopreservation. However, no harm is done by making clear the intention that any other method of keeping is covered. It is entirely in line with the spirit of Clause 2(2) and therefore, as my noble friend has put forward this point, I undertake to consider it and will seek to bring forward an amendment on Report on the lines he suggested.
The Duke of Norfolk: I thank the noble and learned Lord and I withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Kennet Lord Kennet moved Amendment No. 9A:
Page 2, line 5, at end insert —
("( ) For the avoidance of doubt it is hereby declared that an embryo shall have the legal status of a person.")
The noble Lord said: I apologise for putting Amendments Nos. 9A and 9B down so late in the day —only this morning. I will not weary the Committee by reciting the reasons, but I apologise in the interests of getting on. I have been advised by the Public Bill Office that the right place to put these amendments is at the end of the definition clause, where they are.
The Bill as introduced does not say whether an embryo is a person or a chattel in law, or indeed any other sort of thing in law. It was represented to me that this is a bad plan because to leave it undefined is likely to leave it to the definition of the courts at a later date. We cannot know what courts and in what context. It has been put forward that it is the duty of Parliament to tackle great moral and legal difficulties like this directly, in the first place, by primary legislation.
What might happen? People fall out and when they fall out they go to court. When they fall out about stored embryos it seems very likely that they will fall out as grievously as they do about divorce, about the care of children after divorce and all that tangle of very intimate emotional questions.
In the United States and Australian courts—these are two countries well up in the league of technology, as we are in this country —there have already been cases which have come to contradictory conclusions on this point. I wish to take a moment to tell the Committee what they are.
As long ago as 1978, in the case of Del Zio v. Presbyterian Hospital, in New York State, the court appeared to decide that an embryo was a chattel. Later, for legal reasons, it was found that it had not so decided though that was the opinion when the court considered the matter. More recently, in September of last year, in the case of Davis v. Davis heard in the Tennessee Circuit Court, the court decided fairly and squarely that an embryo is a person.
I turn now to Australia and the case of Rios —concerned with stored embryos. The parents were killed in an air crash. Litigation ensued and the relevant expert committee; namely, the Waller Committee —I do not know whether it corresponded exactly with the Warnock Committee —advised that the embryos should be destroyed. After pressure it was decided that the embryos should be set aside and allowed to die. The state government of Victoria then introduced a new section in statute law providing that the Minister has to direct the court what to do in certain circumstances. General confusion has ensued out of that case because of the uncertainty whether the embryos were persons or chattels.
A further case is pending in a United States Federal Court concerning stored frozen embryos. The owners or donors wished to transfer them from Virginia to California. That, if you please, has been caught up in the law of interstate commerce which clearly points to the conclusion that an embryo is a chattel and not a person. So the issue is facing every which way in those two countries.
One can imagine the contexts in which litigation might ensue if an embryo is not decided by
750
Parliament to be either a person or a chattel. Divorce proceedings are obvious. Proceedings between or concerning unmarried people may become tied up with opinion concerning the suitability of one parent or the other to bring up the embryo or to dispose of it. In testamentary proceedings can one bequeath an embryo to others? Can one bequeath anything to an embryo? These questions would be settled differently if the embryo were a chattel from how they would be settled if the embryo were a person.
As regards immigration proceedings, couples may seek to enter the country bringing frozen embryos with them. Here we begin to touch on criminal law. One can even imagine customs proceedings. It would be one thing if an embryo were an object which could be brought into the country. But theft is a very likely issue. An embryo made here by IVF may be stolen and taken into a country with tighter laws than ours. For example, an embryo may be taken to a country which has decided that an embryo was a person.
Lastly, there will be a black market in embryos whatever the law is. There is always a black market in regulated products. It is worth noting that in the existing black market for children for adoption —we know that this country is not a centre for that traffic—children with fair hair and blue eyes fetch a higher price than others. It may also be assumed that chattels which are expected to have fair hair and blue eyes will fetch higher prices than chattels that are not expected to.
A good many different branches of law will be concerned with this question, and there are many levels and types of court which may be seized of the cases when they crop up. I believe that it would be a great neglect of parliamentary duty if this Bill did not settle by a simple declaration the status of the embryo in law for the later avoidance of unnecessary and confusing litigation.
As to the form of the two amendments which, as Members of the Committee will see at once, are mutually contradictory, I have taken a leaf from the Government's book and tabled them so that the Committee can adopt either if it wishes. I say at this point that if anyone can think of another status in law for frozen embryos I would not regard my two alternatives as exclusive of all others. It may be interesting to discuss whether, first, the status of an embryo needs greater description in the Bill than it has now. Secondly, if that is so, the question is what that description should be.
It is possible that this debate will not be the last on this topic as the Bill proceeds through this House. I look forward to learning a great deal, as I am sure that all Members of the Committee will, from the lawyers among us of whom I am not one. I beg to move.
Lord Hailsham of Saint Marylebone: I rise to oppose this amendment and its ugly sister which immediately follows. An embryo is not a chattel, and to destroy it if it were would be trespass to somebody else's property. A human entity which is living is not a chattel and neither is it a person in any ordinary sense. Most extraordinary results

751
would occur if it were. Could it bring an action by its next friend? I suppose that its name would be A N Embryo by its next friend, Mrs. Smith. It would be able to bring an action for personal injury if it were damaged. I suppose the loss of expectation of life might be among the general effects for which general damages could be awarded.
It is wrong to try to define a human embryo in terms of established legal definitions which are plainly inapplicable to human embryos. Why must an embryo be one or the other? Why cannot it be just an embryo? This question is like Achilles and the tortoise, the old Stoics and Epicureans and the Greek philosophers who invented puzzles in order to make them unanswerable. It is far better not to attempt to define these matters.
If the present amendment is allowed it would have the curious effect of rendering it murder to destroy an embryo in a way which is certainly the case if any form of experimentation were allowed. It is far better not to go down this road at all and to let an embryo be an embryo, and nothing else.
Lord Somers: I do not normally have the impertinence to differ from the noble and learned Lord, Lord Hailsham, but on this occasion I am going to. I believe that an embryo should definitely be a person. It is an instance of human life. If it is that, who is going to say when it ceases to be just an embryo and becomes a person? There are a few differences because it does not have to pay income tax.
Noble Lords: Or the poll tax!
Lord Somers: Apart from that it is definitely a person.
The Lord Chancellor: I am rather surprised that there seems to have been a pause in the discussion. As my noble and learned friend Lord Hailsham said, the categories of the existing law were developed by analysis of relationships with which our system had to deal. One of the matters with which it did not have to deal at the time the categories were developed was the embryo. The noble Baroness, Lady Warnock, and her committee had to consider this matter. I can do no better than quote from paragraph 10.11 of their report:
"Until now the law has never had to consider the existence of embryos outside the mother's uterus. The existence of such embryos raises potentially difficult problems as to ownership. The concept of ownership of human embryos seems to us to be undesirable. We recommend that legislation be enacted to ensure there is no right of ownership in a human embryo. Nevertheless, the couple who have stored an embryo for their use should be recognised as having rights to the use and disposal of the embryo, although these rights ought to be subject to limitation. The precise nature of that limitation will obviously require careful consideration. We hope the couple will recognise that they have a responsibility to make a firm decision as to the disposal and use of the embryo".
Although there is no specific provision in the Bill to say in terms that there is no right of ownership of a human embryo, the policy in the Bill is very much based on the Warnock Report's recommendations on this aspect. It is fair to say that
752
few comments were received about these matters during the two rounds of consultation which preceded the publication of the White Paper in November 1987.
Schedule 3 to the Bill, which sets out a detailed scheme of consent, follows the spirit of the recommendations of the Warnock Committee. I am sure that we are right not to seek to define ownership as in these amendments. The scheme of Schedule 3 requires that an embryo once created is to be used only in accordance with an effective consent given by those from whom it has been created. The ultimate sanction, as it were, is that any embryo in respect for which there is no longer an effective consent for use or storage is to be allowed to perish. This appears to be the best way forward at this juncture.
The various cases to which the noble Lord, Lord Kennet, referred illustrate how difficult it is for lawyers to cope with the kind of problems with which his amendments deal. They come to contradictory conclusions, as he pointed out, even though they may start off, so far as the law is concerned, from somewhat similar concepts. The real difficulty is that the concepts in the existing law of person, the rights of persons, the concept of chattel and so on do not fit the embryo. I should have thought that my noble and learned friend Lord Hailsham must be right. We should leave "embryo" as "embryo" and seek to deal with the conditions which affect it after the manner of Schedule 3. Noble Lords may have different views about that. There is room for difference of treatment in detail of these matters. This seems to be a fair way to take the matter forward. To go down the road of the amendments would be to pose conundrums which might be fascinating for lawyers to discuss but which would not really deal with the fundamental problems.
Lord Prys-Davies: Although I speak from the Front Bench I do so in a personal capacity. I do not find the amendments helpful. There are difficulties about the status of a person. Is it to be the status of a child; is it to be the status of a fetus, or what: There are difficulties also over the status of a chattel. The term is used in legislation —for example, in the Sale of Goods Act —but none of us would dream of using the term chattel in the sense that it is used in the Sale of Goods Act. I do not think the amendments are helpful and they should not be pushed any further.
6.15 p.m.
Lord Kennet: This has been a shorter debate than I expected. Perhaps we can have a longer one later. I fully took the force of the points made by the noble and learned Lord, Lord Hailsham. Nobody knows what an embryo is in law. It was to start the process of helping our society to make up its mind that I introduced the amendments. I was surprised that the noble and learned Lord did not refer to any of the four cases which simply illustrate the confusion which the good Americans and good Australians have fallen into for lack of a statutory definition when they come to deal with the nitty-gritty of everyday life between people who are at odds.
Lord Hailsham of Saint Marylebone: I rise only to answer the noble Lord's question. My experience of quoting American cases is like swimming in treacle; they ask themselves a silly question and then they give a foolish answer.
Lord Kennet: I have little doubt that the present state of British law in this matter is inadequate to cope with this new technology. Whether to propose a remedy to that is itself a foolish activity or whether it is only my answers that are foolish I am not sure. However, I do not believe that the Americans are much more foolish than we are.
The noble and learned Lord the Lord Chancellor remarked how difficult it was for lawyers to cope with this problem and how likely it was that they would come to contradictory conclusions. That is exactly my point. I introduced these imperfect amendments with the idea that it was the duty of Parliament to help them to come to conclusions and to forestall those contradictions with something which, in the judgment of Parliament, was just and sensible. Obviously we do not have it. These amendments do not contain it.
However, I do believe that even this tiny debate demonstrates an underlying schizophrenia, using the word in the layman's sense, which exists about the embryo. Is it a thing with which we are allowed to do what we want, or is it a very small human being, which it would indeed be murder to destroy? We cannot make up our minds and we have great difficulty in finding any meaningful words which lie between those two positions. That underlies the whole Bill and will continue to do so.
I should like to invite any noble Lord who shares my perplexity about the matter of definition to be in touch with me between now and the next stage of the Bill. I hope that, although he has not said so, the intention of the noble and learned Lord the Lord Chancellor may be that the Government will not shut their mind entirely to any helpful proposals on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9B not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 10:
Page 2, line 6, after ("has") insert ("become").
The noble Lord said: I tabled this amendment because I was absolutely certain that the verb "to implant" could not be used intransitively as it is here in Clause 2(3) of the Bill which reads:
"until the embryo has implanted".
I felt completely confident about the matter because I looked it up in the Shorter Oxford English Dictionary. I found that there was no example of it having been so used over the past 250 years covered by that dictionary. However, during the last hour I took the precaution of referring to the Oxford English Dictionary which is the longer version, where I found that in embryology —but only in embryology —it has been used intransitively since 1955. Therefore I do not intend to press the amendment. However, it may be that the noble and learned Lord will wish to comment on the matter. I beg to move.
The Lord Chancellor: The noble Lord is absolutely right. The general usage is a transitive one but embryology uses it intransitively. However, the Bill is not meant for embryologists; it is meant for ordinary people. Therefore, although the Bill as drafted takes —not surprisingly —the usage of the embryologist, because it was working in that particular area of science, when we saw the noble Lord's amendment we recollected that it did properly reflect the more general practice. Therefore, I thought it wise to accept the amendment. Accordingly, I propose to recommend that Members of the Committee do likewise.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Prohibitions in connection with embryos]:
Lord Somers Lord Somers moved Amendment No. 11:
Page 2, leave out line 9.
The noble Lord said: This is purely a probing amendment and is not of any great importance. However, it occurred to me that any married couple who proceed in the normal way of married couples will be creating an embryo. Therefore it seems a little unnecessary that they should have to get a licence in order to do so. Of course, I am not sure whether the marriage licence could be used as a substitute in this respect. I beg to move.
Lord Hailsham of Saint Marylebone: It seems to me that the noble Lord has not read Clause 1(2) of the Bill. The creation has to be "outside the human body". I should point out that, at any rate, none of my children was born that way.
The Lord Chancellor: Perhaps I should confirm to the noble Lord, Lord Somers, that one of the purposes of Clause 1(2) is to try to deal with the matter and make it clear that we are not dealing with the ordinary procedures to which he referred but the rather extraordinary procedures which require regulation under the Bill.
There is a possible problem which may arise in another connection about whether there is any need to regulate any treatments which are somewhat abnormal; that is, other than those which are out with the body. However, so far as concerns this particular problem, I think that Clause 1(2) is the answer.
Lord Somers: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 12:
Page 2, line 13, leave out ("a live") and insert ("an").
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 14. I should like to maintain the general hilarity which currently exists in the Committee, but I do not see much possibility of that as regards this particular amendment. I draw the attention of noble Lords to the extraordinary inclusion of the word "live" in Clause 3(2)(a) and (b). The passage reads:

755
(2) No person shall place in a woman —

(a) a live embryo other than a human embryo, or

(b) any live gametes other than human gametes.

The inclusion of that word is doubly unnecessary: first, because surely no one will suggest placing a dead embryo or dead gametes into a woman; and, secondly, because in Clause 1(1) we already know that references to an embryo,
"are to a live human embryo".
Moreover, Clause 1(3) reads:
"References in this Act to gametes, eggs or sperm, except where otherwise stated, are to live human gametes, eggs or sperm".
Therefore, from both those points of view, the inclusion of the word is unnecessary. I propose that the passage should be amended to read:
"No person shall place in a woman —

(a) an embryo other than a human embryo, or

(b) gametes other than human gametes".

I beg to move.
The Lord Chancellor: Perhaps I may deal with the noble Lord's second point first. The definition imports the idea of "live" so far as concerns human embryos. Therefore the definition clause does not import the word "live" where it is another embryo that is in question. It takes us back to the argument as regards the original amendment with which the noble Lord started the proceedings.
The second point is perhaps more difficult. As understand it, the situation is that, however macabre it may be to seek to put a dead embryo or dead gametes into woman's body, it would have no genetic or physical consequence. The mischief which is being attacked here is that of doing anything which may lead to the creation of hybrids. It is the idea of a genetic development by use of a non-human embryo in a woman's body that is in question.
Therefore, although the removal of the word "live" would not do any harm, because what would remain would include live as well as dead embryos, the intention is to focus upon what is the real difficulty or mischief which we are seeking to address. Keeping the word "live" in the Bill makes that fact plain and distinguishes it from other procedures, however macabre they may be, which are not in contemplation. I must confess that it never occurred to me to think of anything other than a live embryo in this context. It is only right to make that emphasis so that the reader may fully understand.
Lord Kennet: I rise to say briefly that I agree with the noble Lord, Lord Kilbracken. Having considered all that has been said, in my view there can be no objection to removing the word. Indeed, it would achieve the same purpose. Now that such a situation has been imagined —and I would not like to judge whether the noble Lord's imagination is macabre —why should we not remove the word?
Lord Kilbracken: For my part, I never imagined that anyone would even consider the possibility of putting a dead embryo or gamete into a woman's
756
body. Indeed, I should say that the idea is macabre. Surely we do not have to put a provision into the Bill which stipulates such a thing is not permitted. No one would try to do this. In any case, if the word "live" is left out it still prohibits the use of a dead embryo. It seems to me to be completely grotesque. However, in the light of the lack of support I have received, apart from that expressed by the noble Lord, Lord Kennet, I am not inclined to insist upon the amendment. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Ashbourne Lord Ashbourne moved Amendment No. 13:
Page 2, line 13, after second ("embryo") insert ("the creation of which was brought about using the eggs of that woman and the sperm of her husband").
The noble Lord said: With the leave of the Committee I shall speak also to Amendments Nos. 25 and 29. In a nutshell these amendments would limit treatment to married couples using their own gametes or, put more simply, AIH (artificial insemination by husband) would be permissible but AID (artificial insemination by donor) would not.
It might be helpful if I were to run over the underlying thinking behind the amendments. The first premise is that children need to be born into a stable union of two people committed to each other. Marriage is a public sign of that commitment. Couples who cohabit, or live in sin as we would have said 10 years ago, usually do so because they do not wish to make a long-term commitment to each other. Is that a sound environment for bringing children into the world?
The amendments are supportive of the family, the fundamental unit of society. The noble Baroness, Lady Ewart-Biggs, initiated a debate on the family on 29th November in which many of your Lordships took part. It is good to see the noble Baroness in her place. The underlying groundswell of opinion during that debate was that the family needed to be buttressed. It needed to be supported. It needed to be built up. I wish to quote from the right honourable Member for Finchley who said on 25th May 1988:
"We must strengthen the family. Unless we do so, we will be faced with heartrending social problems which no government could possibly cure or perhaps even cope with".
More recently, I should like to quote the right honourable Member for Mole Valley, Mr. Kenneth Baker, the chairman of the Conservative Party, who said:
"But it is indeed a pity that we have to rely so heavily on the resourcefulness of single parents in coping with the task of raising children which nature intended to be the work of two people. The theorists of the permissive society claimed that the interests of the parent and the interests of children always went hand in hand; but what more people now recognise is that parents have duties to children that involve sacrificing some of their own wants for their children. Having children creates duties and obligations".
As the father of a handicapped child, I assure the Committee that I strongly endorse that quotation.
To return to the right honourable Member for Finchley: on 17th January she made a widely reported speech at the National Children's Home, in which she addressed the complex issue of

757
maintenance payments by absentee fathers. Yet Clauses 3 and 4 still allow women who are neither married nor cohabiting to become parents through AID. The full impact of the clauses is that national resources may be used legally to encourage single parenthood and that children born to single women would obviously have no statutory father.
It is indeed sad that Her Majesty's Government cannot see the financial and moral inconsistency of that aspect of the Bill. I challenge the noble and learned Lord to explain that inconsistency in the clearest possible terms if the Government are not minded to support the central amendments.
We know nothing of the long-term psychological and emotional effects of AID. Is it not a dangerous path to tread, creating as it does, a Pandora's box of legal, medical and psychological problems? I am going to ask your Lordships to close your eyes and to try to imagine that your mother had told you today that you had been born by AID and that the man you had called your father all your life was not in fact your father. How would you feel about the man, perhaps a medical student, who had so glibly given his sperm? What feelings would you have towards him and his possible motives? And what feelings towards your mother who had deceived you for so long?
I can speak only for myself, but I suspect that I might have feelings of anger and frustration and a sense that I had been deceived. We are talking about the sanctity of human life. Is it right to treat human life so lightly?
On a more down to earth note, if the Committee were to make today a firm decision to ban AID by supporting the amendments, we could delete Clause 26, the "Meaning of 'Mother'", Clause 27, the "Meaning of 'Father'", and Clauses 28, 29 and 30 which seek to regulate the problems created by AID. I know that some Members of the Committee may feel that the amendments lack compassion and it is true that if one partner has faulty gametes and requests donation, the amendment would prevent such help. It does not of course in any way affect adoption.
The Committee might at this juncture like to reflect upon the detailed screening process through which prospective parents who wish to adopt have to go before they are accepted as suitable to adopt a child, in contrast to the negative screening which goes on to have a child by AID. If the Committee feels that there may not be enough babies to meet the needs of those seeking to adopt, it will have an admirable opportunity to amend the Abortion (Amendment) Bill, to be introduced by the noble Lord, Lord Houghton, on 21st February, to tighten up the gaping holes in that piece of legislation.
I am asking for the Bill to follow the truth. Here scripture is relevant. In John, Chapter 8, verse 32, Jesus says:
"If' you continue in my word you will know the truth, and the truth will set you free".
The amendments present the simplest, most honest and yet workable format for improving the Bill with regard to artifical insemination. It avoids the pretence of calling someone else father, and
758
children will know that, although artificial means may have been used in their conception, at least their parents are their parents. I commend the amendments to the Committee. I beg to move.
Lady Saltoun of Abernethy: It might possibly be of assistance if I said a word or two at this stage. The amendment moved by the noble Lord, Lord Ashbourne, is designed to prohibit all gamete donations. I have enormous sympathy with the amendments. There was a time when I would have supported them because I find the whole idea of gamete donation repellent. However, after lengthy reflection, and it has been lengthy because I first raised the subject in this place six and a half years ago, I have come to the conclusion that in an intensely personal matter of this kind it is not for me to impose my views upon others.
I think that to have, or not to have, a donor child is perhaps a personal decision for the couple concerned. Having said that, I absolutely appreciate Lord Ashbourne's point about a donor child discovering later in life that he or she, is a donor child. I shall return to that subject when I move amendments to Clauses 26 and 27.
I have therefore decided to oppose these amendments, and later this evening shall be moving amendments of my own to prohibit, in the interests of resultant children, the provision of AID and in vitro techniques and services to unmarried women. If the noble Lords, Lord Ashbourne, Lord Robertson of Oakridge, and Lord Milverton, and the noble Earl, Lord Lauderdale, press these amendments and win I understand that it is likely that they will be reversed when the Bill goes to another place, and then it will be too late to introduce my amendments, for when a Bill returns from another place we can only agree or disagree with their amendments. We cannot at that stage introduce fresh amendments of our own.
I therefore implore those noble Lords not to press their amendments, but if they do I hope that the Committee might reject them and support my amendments, on the basis that the interests of the children are of paramount importance, and that it is crucial to have that half loaf instead of going all out for a whole loaf and ending up with nothing. Incidentally, I wonder whether or not the amendments outlawing gamete donation are possibly defective, since Section 27 of the Family Law Act 1986 apparently regards AID as legal.
Lord Hailsham of Saint Marylebone: I do not of course doubt for a moment the sincerity of my noble friend behind me in proposing this amendment. Nor do I suppose for a second that he is lacking in compassion. However, I suggest that this amendment is wholly lacking in common sense. Let us look at what it says. It says that a married couple who employ AID will be punishable under Section 36(6) by six months' imprisonment. That is what my noble friend proposes.
A woman who lives with a man, or with men, promiscuously, and produces a number of illegitimate children is totally immune from process under this amendment and will continue to be the

759
mother of illegitimate children. How, in those circumstances, this amendment is supposed to preserve the sanctity of the family absolutely baffles any kind of description.
If an unmarried couple use AID, the penalty is six months' imprisonment under the amendment. But I have known cases —and I daresay noble Lords have known cases, or read about them in our social history —where a married couple have in fact been unfaithful to one another and the husband of that married couple has brought up the child as his own, and the child has remained under the belief that it is a child of the family. I regard that as a highly moral action on the part of the husband, but if it had been done by AID the husband would have been a criminal. I think that this is nonsense.
I hope that my noble friend will believe that I am just as sincere a Christian as he is. I happen to believe that sexual intercourse outside marriage is a sin, but I would not punish it by six months' imprisonment, nor would I punish fornication in the same way. Whatever can be said about adultery or fornication, they are a good deal more pleasant than AID would be, and I do not really see why AID should have an added punishment.
The Duke of Somerset: In the scenario painted by the noble Lord, Lord Ashbourne, if I had just been told by my mother about AID I would consider how good it was to be alive, because if it was not for the donor I should not even exist.
6.45 p.m.
The Earl of Cork and Orrery: I wonder whether I have completely misunderstood the argument which has been presented so far, or whether my noble friend Lord Ashbourne has not very much overstated his own case. He has presented the case for the amendment apparently taking as his base the alleged fact that in vitro fertilisation and AID are synonymous. However, they are not.
The noble Lord's amendment proposes to make it illegal to place in a woman "a live embryo other than a human embryo" and so on. AID does not place any live embryo anywhere, as I understand the meaning of the words. It is simply the introduction of a male sperm into a woman. There is no question of any glass dish involved in this at all. I would personally support the amendment if only my noble friend could make it clear that AID does not come into the argument at all.
The Earl of Halsbury: My views are identical with those of the noble Lord, Lord Ashbourne, so far as my personal behaviour is concerned. I would never under any circumstances allow a child of my loins to be brought up by other people. But I am in the difficulty, as so often we all are, that I am a Christian legislator in a secular community, and my personal views are not those that I must necessarily impose on others.
In that community AID is now a fairly established practice, and it would be unwise to use this Bill to disestablish it. Therefore, if my noble friend Lady Saltoun expresses herself "Not Content" when the
760
voices are collected, I shall say the same and follow her into the Division Lobby.
Lord Prys-Davies: I very much respect the sincerity of the noble Lord, Lord Ashbourne, but this amendment is a worrying amendment. It really represents the most restricted and constrained approach towards the treatment that would otherwise be available under the Bill. It is restrictive —and we must emphasise this —in two ways. First, because the treatment is restricted to parties of a marriage whose union has been formalised either by a civil or a religious ceremony, and the treatment would not be available to cohabiting couples or to a single woman. I do not want to anticipate the debates that will be coming up later on the amendment in the name of the noble Lady, Lady Saltoun, but we are entitled to ask: why should treatment depend on marital status, and why should the law discriminate against cohabiting couples or even single women?
Then there is the second restriction. The noble and learned Lord, Lord Hailsham, has referred to this. The amendment restricts the treatment even within marriage to an embryo that has been brought about by the eggs of the woman who receives the embryo, and the sperm of her husband. That rules out sperm donation; it rules out egg donation. Currently, as we know, both the eggs and the sperm may be donated. That is being resorted to because couples who desperately wish to raise a family may be sterile, or, alternatively, one of them may be a carrier of a serious hereditary disease. While accepting the sincerity of the mover of this amendment, it is our submission that one cannot justify the banning of the egg or sperm donation without being pretty indifferent to the needs and hopes of very ordinary people in our country.
The Lord Bishop of Southwark: I have listened to the discussion on the amendment with great interest. I am clear that the amendment as it now stands will not achieve what the movers clearly wish it to achieve. It will certainly not achieve the statement about a concern which they have. I was a little surprised to hear the noble Lord, Lord Ashbourne, use the phrase, "legal, medical and psychological problems" when I suspect that as much as anything he is concerned about a moral issue. It is important to state before the discussion ends that many of us are concerned with the fact that marriage is something which binds together the whole question of sexual relationships and parenthood. That is something that we do not wish to see undermined by legislation. Anything which legislation seems to do in that way always leaves many of us concerned. On the other hand, as the noble Earl, Lord Halsbury, said, there is a place for a sense of reality about what is possible in our present day society.
I wish to make two points on this matter. The first is that any form of assistance from an outside donor, a third party, violates in some sense the exclusive union that exists between a husband and wife in a way that adoption does not. What has happened is that a third person has been involved in the creation of that child. We may recognise that that is not

761
adultery in the normal sense —I am quite clear that it is not as it has a much more deliberate and almost clinical quality than adultery —but, nevertheless, there is an invasion of the union. We do not yet know enough to know what the consequences will be for many marriages where this has happened in terms of how people handle the matter later on.
My second point has already been raised. It is that anonymity in this area is something that we need to avoid as far as possible when the children are growing up. The interests of the child must be paramount; that is to say, they must take precedence over the needs of the parents, especially those of the mother to find fulfilment in the bearing of a child. The concern that has grown over the past few years about helping children who have been adopted to know something of their roots must have a parallel in this matter. I hope that that issue will be addressed carefully as we work our way through the legislation, if we are to allow the development of donor intervention to take place.
The Earl of Lauderdale: The Committee will be grateful to my noble friend Lord Ashbourne for saying what he has said in the way he said it. I believe that that is so whatever point of view individual Members of the Committee may hold. My noble friend drew attention to the context in which this whole Bill has been brought before us which is the context of family life. Unless the Bill has been brought before us in the context of family life its context must be that of treating people like cattle. It is one or the other. I do not wish to raise the temperature of the debate as I know we have all been busy trying to keep the temperature down. However, that comparison must be made. This whole matter must be treated either within the context of the family or of the farmyard. Having said that, I was much impressed by what the noble Lady, Lady Saltoun, said. If we were to press this amendment now and therefore prevent the discussion and the proper handling of her amendments which also relate to the context of family life, we would be doing a disservice to society, to the Bill and to ourselves.
One matter has been raised which will no doubt come up again. We have heard some Members of the Committee on the other side of the Chamber saying that it does not really matter whether children are born of a formally married couple or what is commonly called a stable, but what more often proves to be an unstable, relationship. Whatever our views on theology or sociology may be, we all know very well that much delinquency derives from broken families, broken homes or from children who have been driven out of their homes because their mother has found a new partner who cannot stick her children. Many of the children on the streets of London are the product of that situation. I beg the Committee to give its mind to that context when progressing through every stage of the Bill.
I put my name down to this amendment readily and perhaps not with sufficient thought because I never think of the legal consequences, unlike my noble and learned friend Lord Hailsham. I never thought of a six months' gaol term and other such
762
matters. However, I feel that there is an important distinction to be made in all our minds here between AID and AIH. That is so whatever position we hold on a moral, theological, philosophical, social or political viewpoint. AID is the farmyard, like it or not, but AIH is the home. That is why I support the amendment in principle.
I believe that my noble friend may wish to consider withdrawing the amendment and returning to it at a later stage when we have had a chance to consider the amendments of the noble Lady, Lady Saltoun. In the meantime, I beg the Committee to look at this whole matter in the context of the family and not of the farmyard.
Lord Winstanley: I should mention one point which is perhaps related to what the noble Earl has said to us. Surely he would accept that a child born to a loving married couple as a result of AID is a wanted child. That situation has occurred. However, does the noble Earl accept that many children are born every day who are not wanted by anyone at all although they are born to properly married couples?
The Earl of Lauderdale: I accept that there are unwanted children. We all know of such children and of the sadness they feel when they discover they are unwanted. However, that does not disprove the value, merit or ideal of family life and its stability and coherence. Nor does it disprove the respect for the traditional values with which society has endowed family life down the centuries, irrespective of Christianity. That is the point I am trying to make. Whatever our position in terms of religion, science, philosophy or agnosticism, the family is a natural unit and it is in all our interests to develop and protect it. That is the context in which I ask the Committee to study this matter.
Lord Houghton of Sowerby: I do not think that the noble Earl should suggest that this amendment can be taken away for its merits to be reconsidered because it does not have any. It is highly discriminatory. When one considers this matter in relation to present social trends, sexual relationships and the matter of non-discrimination between men and women, the whole idea is Victorian. We have to avoid legislating in Victorian terms on a forward looking Bill of this great importance and imagination. We do not discriminate in abortions. We are about to stop discriminating as regards taxation. We provide state services to women; therefore women are entitled to be considered by reference to their status in relation to those services and not solely in relation to the legalised married state. That theory has been tested on 1,000 women. They were all against the discriminatory idea that these services should be available only to married couples. Some single people can make perfectly good parents. If one examines the social aspect of this matter, one can become a little confused about the blessings of family life, or indeed the confidence that many young people have in it. In those circumstances we must deal with this matter as relating to the rights of women and in response to the social trends of the day.
The Earl of Lauderdale: The only discrimination in which I shall indulge is as regards not responding to the noble Lord, Lord Houghton. I have long since learnt that that is a very dangerous thing to do as we then continue all night. Therefore I shall discriminate against my taste to reply to the noble Lord.
7 p.m.
Baroness Phillips: I should like to support the noble Earl and the right reverend Prelate. I am afraid that I shall take issue with my noble friend on this side of the Committee. Of course he mentioned society. What kind of society do we have? What do we have to be proud of? There are thousands of cases of child cruelty every year, child murder and child rape. The cases invariably involve someone who is described by the strange term "live-in lover". That is a revolting description of a strange condition. We all know that a man will not care greatly for a child of which he is not the father. In some unusual cases they care for the children, but it is not the instinctive feeling that a man has for a child of his own. We have to consider that point.
I find the Bill totally repugnant. Some of the more frivolous amendments are a relief. I had to go out for a cup of tea before we considered again the business of bits in a dish. To me that is not what human life is about. Human life has dignity. It is the result of an act of two people who love each other and want to have a child. It is not this cold-blooded business.
Yesterday we had to listen to legal definitions which confused us; today we have the scientists and the embryologists. I have never heard of some of the things that have been mentioned. I had heard of an embryo, but I did not even know that I had had the benefit of all those other things before my children were born.
I am very grateful to the noble Lords who introduced the amendment. We take the point of the noble and learned Lord, Lord Hailsham, that they had not thought out the question of the penalty. However, that does not in any way militate against the value of the amendment. Perhaps we can return to the matter at a later stage of the Bill.
Lord Milverton: I have no shame about having put my name to the amendment of my noble friend Lord Ashbourne. I am grateful to the right reverend Prelate because his remarks were very much on the nail. They reflect the reason why I put my name to the amendment and why I have in a sense come full circle and have come to have a very strong feeling of distaste for the Bill as the noble Baroness, Lady Phillips, has.
As the right reverend Prelate said, we are not helping marriage. We are not helping young people to love and treasure marriage where it is truly compassionate, a man and woman giving themselves to each other. As the right reverend Prelate said, we are drawing a line which will not help marriage but in the end —and I hope that I am wrong —make it a haphazard affair. Those of us who feel strongly about marriage are in a minority. I prefer to be in that
764
minority rather than be party to the "Let's do everything with it" attitude of the time.
Lord Robertson of Oakridge: As I put my name to the amendment I believe that I ought to say a few words. It is a pity that two important points have been combined in the one amendment. One is the provision of treatment to unmarried women and the other is the question of AID and egg donation.
All that I should like to say on those two points is that we have heard a very good speech from the right reverend Prelate the Bishop of Southwark, which has made the debate and the time we have spent on it worth while. I shall read that speech with great interest.
As to the question of providing treatment to unmarried women, we shall have another opportunity to debate that matter under the amendment of the noble Lady, Lady Saltoun. I look forward to that.
The Lord Chancellor: All members of the Committee will agree that this has been a very important debate and one on which we face very important issues. I should like to say, first, in answer to the noble Lord, Lord Milverton, who expressed a distaste for the Bill, that if he believes that such matters ought to be regulated then a Bill such as this is essential. I do not believe that any of us relishes the difficult task which is involved in coming to decisions in these areas. However, I believe that we have a duty as legislators to seek to achieve a regulation of the matters in our nation which will last.
That brings me to underline the point made by the noble Earl, Lord Halsbury. As a devout Christian, as he undoubtedly is and as he manifested to us, he has to take account of the fact that he is legislating for a number of people, some of whom at least do not share his convictions. It is necessary that we take account of that also. The difficulty is to know how far one can go in accommodating those differences of view and still produce a satisfactory regulatory system.
In my third point I take up the quotations of my noble friend Lord Ashbourne from my right honourable friend the Prime Minister and my right honourable friend the Chancellor of the Duchy of Lancaster. The Government are committed, as I am, to the family as an important institution in our country. I know that the noble Lord, Lord Houghton of Sowerby, has expressed himself differently. However, for my part —and I speak on this matter on behalf of Her Majesty's Government —I believe that the family is a vital institution in a healthy society. I should not like to see anything allowed to undermine that.
As has been pointed out, there are two aspects to the amendment. The first is that treatment of that kind would be available only to parties to a marriage. That is the position that the noble Lady, Lady Saltoun, takes up in her amendment, to which we shall come later. The second point is that the amendment restricts the use of gametes to the gametes of those who are parties to the marriage. In

765
other words, if the difficulty in fertility lies with the husband or there is some other problem of a genetic character regarding his powers to produce children, the parties to the marriage will not be allowed, if the amendment is carried, to accept donation from anyone else. That is what distinguishes the amendment from the amendment proposed by the noble Lady.
The question is whether the interests of preserving the family go as far as the amendment. If I was speaking entirely for myself I might well reach a different view, but in seeking to establish a legislative framework which will regulate the matter for the country as a whole I have to ask my noble friend whether it is wise to go thus far. I understand and accept that so far as he is concerned his conscientious conviction would prevent him and like-minded people from adopting the course of using the gametes of anyone outside the marriage to assist in overcoming that type of problem. I accept that and I share the convictions very strongly. However, as has been said, we must accept the fact that that practice has been going on in this country for some considerable time. Until now, no attempt has been made by the Government of the day, at least on a concerted scale, to legislate to prevent it. It may not therefore be wise to press that aspect of the amendment.
The noble Lord, Lord Houghton of Sowerby, referred to the rights of women and to discrimination. I understand his point of view. I also understand and draw attention to the point made by the noble Lord, Lord Winstanley; namely, that the child conceived by a donor in the circumstances that we contemplate is probably very much wanted and will be born into an affectionate and stable relationship. As the noble Duke, the Duke of Somerset, said, that child has the benefit of being born and of having life in consequence of that.
As I indicated, my personal conviction would go along with what the right reverend Prelate the Bishop of Southwark said on the matter. However, with regard to the practicalities of legislation, I wonder whether my noble friend is right to press the amendment, given that another amendment of a more limited kind will be proposed shortly.
My noble and learned friend Lord Hailsham drew attention to the contrast between that kind of situation and the situation, as it were, open in nature, and to the effect of the amendment with regard to criminal sanctions. Another point must be taken into account: it would not only be a criminal sanction. If the amendment were to be passed, it would be the understanding of my noble friend that this option would at least not be lawfully available. The practical effect of his amendment would be not so much that people would land up in prison, but that the option of that method of procreation would not be available. I believe that is the effect that my noble friend has in mind. I hope that, in the light of all those considerations, he will feel able to take an appropriate course in respect of the amendment.
Lord Kilbracken: Perhaps the noble and learned Lord will comment on the important point raised by the noble Earl, Lord Cork and Orrery. Surely in
766
all this legislation we are talking only about in vitro fertilisation; namely, that which takes place in the dish outside the human body. Nothing in the legislation relates to AID or AIH, and both would still be available even if the amendment were agreed.
7.15 p.m.
The Lord Chancellor: Yes, that may well be true as matters stand. There is a suggestion that it might be wise to legislate to cover those treatments too. However, the Bill states:
"This Act, so far as it governs bringing about the creation of an embryo or the keeping or use of an embryo, applies to bringing about the creation of an embryo outside the human body or keeping or using an embryo outside the human body".
The treatments which are possible in relation to the Bill include,
"medical, surgical or obstetric services provided for the purpose of assisting women to carry children".
That provision is not restricted to bringing about the creation of an embryo.
Lord Kilbracken: An unmarried couple would still be able to make use of AID or AIH.
Lord Hailsham of Saint Marylebone: Not AIH.
Lord Kilbracken: No, not AIH.
Lord Ashbourne: I am extremely grateful to all noble Lords, particularly my noble and learned friend the Lord Chancellor, for taking part in the discussion which seems to be central to the Bill. I am extremely glad that Her Majesty's Government are committed to the family. I suspect that the noble Baroness, Lady Ewart-Biggs, who recently introduced a debate on the subject, will also be glad to hear that
I can only say, and I say this with great regret, that senior Ministers in the Government —the Prime Minister and the former Home Secretary, possibly the two most senior members of the Government concerned with those matters—frequently make speeches with which I wholly agree, but unfortunately there seems to be a serious communication gap somewhere down the line. Many noble Lords are far more experienced than I am in the process of government. We have heard those positive statements by the Prime Minister. She makes them quite frequently. I go along with them 100 per cent. and think, "Good-oh, we must be getting on track at last". Yet, having heard those mighty pronouncements from the top members of the Cabinet and the Government, we find those gaping holes in legislation where artificial insemination by donor is encouraged, fatherless children come into the world on every side and the Government try to cut down expenses and not make payments. It amazes me. The Broadcasting Bill which is going though another place contains the most appalling anti-Christian legislation. I find it difficult to see how such legislation can come about.
I was grateful to my noble and learned friend Lord Hailsham for pointing out the possible effects of the amendment. I had not fully appreciated the impact of that side of the matter. The noble Lord, Lord

767
Houghton, appeared to say that, as a great many things are happening in this country, we should go along with them and not accept my amendments. It seems to me that, because those things are happening in this country, we have the highest divorce rate in Europe, we are equal first with Germany in the abortion table, there is appalling child abuse and prisons are fuller than in any other country, both in absolute and relative terms. Is that the kind of thing of which we can be proud?
We must get down to basics and this matter is one of the basics. I entirely endorsed that groundswell of opinion in the recent debate on the family. If we get the family right, all those other things will come right as a spin-off effect. Our prisons will not be bursting; our rate of abortions will not be higher than anywhere else; marriages will not break down; and divorce will not be higher than anywhere else. The cause of the problem is that marriages go wrong. I recommend that the Government focus on the cause of the problem and do not spend their life trying to shore up holes in the dyke as they occur.
I am grateful to the noble Lady, Lady Saltoun, for her amendments with which we shall deal shortly. In the circumstances, I shall not press my amendment to a vote, but I may well return to the matter on Report. I shall certainly consider carefully the noble Lady's amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 14:
Page 2, line 14, leave out ("any live").
The noble Lord said: When the noble and learned Lord resisted my Amendment No. 12, I decided that I would not move Amendment No. 14 and slipped away to the Bishops' Bar. While there I looked at it again and I wondered what it was that we were saying. I realised that I would have this opportunity I to take another bite at the cherry. The spectre that he held up was of a dead embryo being placed in a womb, and that was his main reason, as I understood it, for resisting my amendment.
But if my amendment does not go in and the word "live" remains at subsection (2)(a) —
"No person shall place in a woman … a live embryo … or… any live gametes"—
that has exactly the opposite effect. That makes it perfectly legal and perfectly all right to put a dead embryo in a woman or to put dead gametes in a woman. Therefore I feel that he, unlikely as it might seem, must have got it the wrong way round. Therefore, I beg to move.
The Lord Chancellor: It is absolutely true that the Bill as it stands does not prohibit, as it were, the implantation in a woman of dead, non-human gametes. That is absolutely plain. But the point is that the mischief with which this provision is designed to deal is the mischief of inserting live, non-human gametes in a woman. The potential harm of that is very great indeed.
The real point of the drafting phraseology is that it emphasises the nature of the mischief at which
768
this provision is directed. To make it more general and include something which nobody thinks is likely to happen but, if it did happen would have no particular effect other than to be macabre, is to deaden and dilute the emphasis of the Bill as drafted.
I hope that the noble Lord will feel that the second attempt perhaps enables me to emphasise, more clearly obviously than I did before he resorted to the place of refreshment, that the particular point that he makes in this amendment is not a good one.
Lord Stallard: The noble and learned Lord the Lord Chancellor has explained the point quite adequately. However, what becomes the Act and the statute are the words in the Bill and not his explanation. It seems to me that if he accepts the point made by my noble friend Lord Kilbracken, then that word should be in the Bill. No one will read the noble and learned Lord's explanation. People will read the Bill. If the Bill is wrong and allows this malpractice, then the Bill should be altered.
The Lord Chancellor: The Bill is right. I do not for one minute believe that many people will want to read a Lord Chancellor's explanation, but when they read the Bill they will see that the evil with which we are trying to deal is that of seeking to implant in a woman live, non-human gametes. That is what we are aiming at.
It damages the thrust of that provision to try to aim widely. Instead of directing one's shot at the proper target, it may be thought better to have a great dispersal of shot, as if one does not know what one is trying to hit. But the force of this drafting means that it is directed precisely to the evil that we are trying to combat. That appears without any explanation from the Lord Chancellor if one just reads the Bill quietly and calmly. That is all that I am saying to the noble Lord.
Lord Kilbracken: As I read this Bill, I see that it says that:
"No person shall place in a woman … a live embryo other than … or … any live gametes".
My automatic reaction is to say, "Okay, then it is perfectly all right to insert a dead embryo; otherwise why specify a live embryo or any live gametes?"
However, I do not wish to labour this point any further and I accept what the noble and learned Lord said. I feel that I have made my point. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage of this Bill should begin again at 25 minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Chlorofluorocarbons (Control) (Bill) [H.L.]
7.25 p.m.
Baroness Robson of Kiddington: My Lords, I beg to move that the Bill be now read a second time.

769
The aim of the Bill is to eliminate as soon as possible CFCs and other ozone-depleting substances. Failure to do so will result in further destruction of the ozone layer, leading to increased incidence of skin cancer, possible cancer and genetic damage, stunted growth and other damage to plants and crops as well as significant damage to terrestrial and aquatic food chains. The other reason for eliminating CFCs and other such chemicals is that they are very important greenhouse gases, as became very clear in last week's debate on the greenhouse effect.
One molecule of CFC12 is 10,000 times more effective at trapping radiation than is a molecule of carbon dioxide. In 1987 NASA, the United States space agency, sent a converted U2 spy plane over Antarctica. It found that the ozone hole was the size of the USA and as deep as Mount Everest. At certain altitudes 97.5 per cent. of the ozone was missing.
CFCs are not natural gases. They were invented in 1930 by the same man who put lead in petrol. Therefore they have only been about for 50 years and already we are more than aware of the damage that they do. The scientific facts and figures are now largely beyond dispute and widely accepted. In 1987 the Montreal Conference saw 46 countries sign an agreement to cut by half consumption of some CFCs and halons, mainly in fire extinguishers, by 1999. That is now accepted as totally inadequate. A further meeting of 81 nations in Helsinki in May 1989 loosely agreed to ban all CFCs by the year 2000 but that was conditional on acceptable replacements being found. Some of the new replacements, while less harmful than CFC12, still have ozone-depleting and greenhouse-inducing properties.
The United Kingdom has a very important role to play. It is the leading producer and exporter within Western Europe and itself uses some 6 per cent. of the world's CFCs. By contrast, China, which has refused to sign the Montreal Protocol, is responsible for a mere 2 per cent. of CFC releases. However, countries like China, India, Indonesia and Brazil are all intent on raising the living standards of their people, which is quite understandable. Among the things with which they want to provide them are refrigerators. Even if those contries were to sign the Helsinki agreement, which they are unlikely to do under present conditions, they would still be allowed to increase their domestic consumption up to the permitted level, which means that global use of the substance will be approximately double the 1986 level. It is therefore the responsibility of developed countries to produce alternatives. A complete ban on every CFC by the year 2000 would not stabilise ozone levels until 2050 because of the CFCs already emitted that have yet to reach the ozone layer.
I now refer to the main proposals of the Bill. Clause 1(1)(a) brings forward from 1999 to 1995 the date when CFCs have to be eliminated. It appears that that would be perfectly possible because, for instance, Sweden has already undertaken to eliminate CFCs by 1994. If it can be done in Sweden, I presume that it can also be undertaken here.
Clause 1(1)(b) refers to the elimination of the use of CFCs in the manufacture of flexible foam by 1st July 1991. This perhaps poses the most difficult problem. Less success in research has been achieved
770
so far, but a West German company, Thanex Chemicals, has now developed a flexible foam without CFCs. It therefore appears realistic that the aim of the Bill could be achieved.
The safe destruction of used flexible foam poses a perhaps more dfficult problem. However, there seems to be no reason why such foam could not be safely stored until such time as an appropriate method has been perfected.
In Clause 1(1)(c) the Bill proposes the elimination of CFCs in aerosols from 1st July 1991. To a large extent that has already come about due to consumer pressure. However, a prohibition in law is still necessary. The consumer pressure has been particularly effective in the use of household and cosmetic aerosols. I have personal experience, for instance, that buying hairsprays without CFCs turned out to be slightly cheaper than buying those that contained CFCs. The consumers are not in the same position to pressurise fire extinguisher manufacturers or computer cleaning manufacturers as they are over the use of aerosols. It is therefore important that the Government take a hand. We all know that CFCs are also present in the coolant of refrigerators. That liquid can be easily sucked out. Some councils—very few—already do so. There are also some refrigerator companies, such as Bejam, who voluntarily collect their old refrigerators and deal with the CFCs in them.
I was interested to see a press release from the Department of the Environment issued on 29th January when Mr. David Trippier was present at the Runcorn headquarters of ICI. He launched the company's initiative to recycle chlorofluorocarbons. Under a new recycling scheme CFCs from scrap refrigerators will be removed by local authorities and other agencies and returned to ICI in cylinders for recycling or safe disposal. That is tremendously welcome. However, I still believe that we need legislation to make certain that all local councils are made responsible for ensuring that such collection is carried out by them. The cost of a piece of machinery to get rid of the CFCs in refrigerators is quite small —about £5,000. There is no reason why councils should not be forced by law to use the facilities that exist.
Mr. Nicholas Ridley said on 25th January 1989 about CFCs:
"The science is clear. The solutions are at hand and the cost is not prohibitive".
It is for that reason that the Bill clearly states the time limits by which CFCs have to be phased out.
Clause 1(1)(d) deals with other ozone depleting substances, including methyl-chloroform, used in manufacturing processes, and states the time limit as 1st January 1993. The UK Government are resisting calls for a ban on methyl-chloroform and other Class 2 ozone depleters. The United States, the USSR, Holland and Australia all want action. Methyl-chloroform is thought to cause 16 per cent. of ozone depletion. The abolition of the use of methyl-chloroform would have an almost instantaneous effect on the stabilising of the ozone level. Methyl-chloroform remains in the atmosphere for only 15 years compared with over 100 years for CFCs. If that gas were dealt with, we should have

771
gone a long way towards reducing the level of ozone depletion. The UK Government want a freeze at present levels and a review in 1994, which is much too late.
Subsection (2) of the Bill empowers the Secretary of State to make proposals in line with the timetables in Section 1 and to establish the penalties to be imposed on manufacturers and others who fail to comply with the timetable.
Subsection (3) makes provision for the proposals made under subsection (2) to be made by statutory instrument but provides that no such instrument shall come into force unless a draft thereof has been approved by a resolution of each House of Parliament.
Clause 2 establishes that the release into the atmosphere of CFCs used in refrigeration shall be an offence. Clause 3 makes provision that all items containing CFCs and other proven ozone-depleting substances be labelled as such. Clause 4 deals with the penalties to be imposed on persons who contravene the requirements in Clauses 2 and 3.
Clause 5 makes provision for the setting up by the Secretary of State of a committee independent of his department, including representatives of industry, consumers, scientific experts and anyone else he considers appropriate. This committee shall report on the facilities existing for the reprocessing, conservation and disposal of CFCs. He shall also advise on any incentives needed for the safe disposal of these substances and on any incentives needed to require the manufacturer to use alternatives to CFCs, whether in domestic, industrial or other equipment. This committee shall report as soon as it considers feasible. The report should be published in full and the Secretary of State should act upon its recommendations as soon as the committee considers practical.
In his speech in the debate on the greenhouse effect, the noble and gallant Lord, Lord Carver, at col. 230 of the Official Report of 29th January, stated in conclusion:
"However, governments cannot, before they act, wait until they can be more certain that science is giving the right answers. They must begin now to adopt insurance or what are called 'no regrets' policies, particularly to reduce emission of greenhouse gases. Those policies can be put into effect without causing drastic economic or social difficulties".
About five minutes before I rose to my feet I was handed a letter from the Royal Society of Chemistry. It is a non-profit making organisation and charged by Royal Charter to act in the public interest. It states:
"The Society welcomes the opportunity occasioned by this Bill to discuss the issues that surround the use and disposal of CFCs. There is clearly a need for continuing scientific research on this issue. The Society particularly supports the provision for the establishment of a committee, with widespread representation including appropriate scientific expertise, to report on measures needed to require the safe disposal, conservation and recycling of CFCs and to report on alternatives to CFCs in domestic or industrial usage. The Society welcomes the research efforts being made by the chemical industry to discover and develop suitable alternatives".
There is no reason why the timetables proposed in the Bill should not be implemented. For the sake
772
of the future of the planet we should implement them. My Lords, I beg to move.
Moved, That the Bill be now read a second time. —(Baroness Robson of Kiddington.)
7.41 p.m.
Baroness Nicol: My Lords, I support the intention of the Bill. When in September, 1987, the Montreal Protocol on substances that deplete the ozone layer was signed by 25 participating countries, it was accepted as a considerable step forward. However, new scientific evidence soon made us realise that the protocol was not strong enough and that much more urgent action was needed.
Discussions are already taking place in advance of the second meeting in June, 1990, of the parties to the Montreal Protocol. It is widely believed that the new target to be discussed will be the complete phasing out of CFCs over 10 years instead of the present target of a 50 per cent. reduction. For reasons which I shall outline, it is likely that even that target will be improved upon.
Apart from their effect on the ozone layer, CFCs are now identified as one of the major contributors to the greenhouse effect, as was pointed out by the noble Baroness. The response to government exhortations and strongly-expressed public opinion has made our aerosol industry largely phase out its use of CFCs. I understand from the British Aerosol Manufacturers Association that only a few aerosols for industrial and medical applications are now in use. At the time when aerosols were in wide use that quantity was reckoned to be 10 per cent. of the whole. I do not know whether the percentage has decreased, but I know that what is now in use is only a small percentage of what it was.
BAMA was concerned about the time limit imposed on the Bill because it considered that it would make those uses impossible. It did not know what alternative would be available to it. Production of CFCs has already declined in this country as a result of the reduction in aerosol use and because new refrigerators use less of the gas than the older models. However, there is a problem with CFCs in refrigerators already in use, both domestic and commercial. While they remain in use all is well; they become a problem when they reach the end of their lives.
Until recently the facilities for recovering and recycling were sparse, as the noble Baroness said. Most discarded fridges found their way to the corporation tip —a source of pollution for the future —and many of them remain there. However, ICI has now launched a comprehensive recovery and recycling scheme. Given co-operation by the public, local authorities and industry, we should be able to contain the problem from now on. ICI has established a network of over 50 depots for recovered CFCs. They are recycled where possible, but when that is not possible they can be safely disposed of by the company.
Meanwhile, research has continued into alternatives for CFCs. During 1988 ICI announced a viable alternative. It is HFC134A and has survived further prolonged testing. Only yesterday I learnt

773
from ICI that it anticipates full commercial production in January, 1991. I understand that it is a "world first" and that ICI is convinced that the problem of CFCs will rapidly diminish once the gas is in commercial production. The alternative gas is known as "Klea", which I understand is Greek for "green and verdant". It is possible that the future may prove it to be not so green and verdant, but for the moment we must take it as it is.
I am not given to optimism as regards environmental matters but I believe that we are on the verge of solving this particular problem. No doubt there will be others. Dr. Farman, the leading expert on ozone depletion at the British Antarctic Survey, wonders whether we should not adopt the precautionary principle for all new emissions into the atmosphere. Perhaps he is right. However, for the moment I believe that the noble Baroness can take heart, even if her Bill makes no further progress —and that is always a strong possibility with a Private Member's Bill of this kind —because the end that she seeks may well be in sight.
7.46 p.m.
The Earl of Liverpool: My Lords, we are indebted to the noble Baroness, Lady Robson of Kiddington, for introducing the Bill and for the clear and precise way in which she has outlined its objectives. I have no doubt that we all share a deep concern about the manufacture of chlorofluorocarbons and the grave danger that they present to the ozone layer once released into the upper atmosphere. In my view, no effort should be spared to curtail and eliminate the use of CFCs, and that is why I welcome the Bill. However, the problem is global and the Bill seeks to legislate only for England, Scotland and Northern Ireland, as is within our power in this House.
The Montreal Protocol is doing excellent work in bringing together the nations of the world in recognising and solving the problems. I look forward to hearing from the Minister and having his reassurance about the continuing good work being carried out by the convention.
There is a lethal cocktail of carbon dioxide and chlorine gas in the upper atmosphere. Even if no more CFCs are released into the atmosphere there is already sufficient to cause depletion of the ozone layer for another 70 to 100 years.
Clause 5(1)(c) empowers the Secretary of State to establish a committee to report:
"on any incentives or measures needed to require the manufacture and use of alternatives to CFCs whether in domestic industrial or other equipment".
That is the strongest aspect of the Bill and the one on which I wish to concentrate. We should give a clear lead. There is in this country a wealth of scientific talent. News of the ICI gas, Klea, is most encouraging but no effort should be spared to find an alternative ozone-friendly gas.
The developing countries of the world are entitled to expect so-called luxuries which we tend to take for granted; for example, refrigerators, deep freezers and air conditioning. There is no danger while those units are sealed and working correctly. Danger arises only when the gas escapes through damage or when the items have been scrapped.
774
It will be difficult enough to monitor our own market and give teeth to Clause 2 of the Bill, which makes it an offence to release CFCs into the atmosphere. I do not know how we can expect the developing countries to adopt a fail-safe way of ensuring that CFC gases will in all cases be extracted from refrigerators. I believe that it would be folly to expect that that could take place in developing countries. Therefore, the main effort must be to find a substitute benign gas before world trade in the refrigeration and air-conditioning market moves further ahead.
I believe that, little by little, time is running out. There is no doubt that past man-made mistakes have contributed to a great weakening in our ecosystems. We must act quickly to try to reverse the trend. I do not believe that we shall have a second chance. I welcome this Bill as representing a tangible step in the right direction. I hope that it will show a lead to the many other nations which are equally concerned with this problem.
7.50 p.m.
Lord Hatch of Lusby: My Lords, I am sure that all of us who badgered the Government before the Montreal Conference for dragging their feet are immensely grateful to the noble Baroness for introducing this Bill. Like my noble friend Lady Nicol, I welcome the Bill wholeheartedly and shall give it all possible support. I hope that the noble Baroness, Lady Robson, will proceed with it, not only because of the value of the Bill itself but also because if she does, there are certain amendments that I should like to move that I believe will strengthen its effect.
There are two issues that worry me which are not in the Bill but are omissions from it. First, as I read it at present, the force of the Bill is confined to this country. What is happening in the chemical world both here and in America, but particularly here, in the search for alternatives to appliances which use CFCs? As my noble friend mentioned, there has been a development of the new gas HFC134A. I am not as optimistic as my noble friend Lady Nicol about its benign quality. I hope that the Minister who is to reply for the Government can enlighten the House on that. I can only put forward what I have been told from the sources which have been researching into this matter. I am told that this new gas is 2,500 times more dangerous in its contribution to the greenhouse effect than carbon dioxide. We cannot afford to concentrate on the abolition of one dangerous gas only to find that we have produced something even more dangerous or even equally as dangerous. I hope that the Minister will be able to clarify that for the House.
I also understand that the new gas is five times as expensive as the use of CFCs. If the Government believe in market forces, that is hardly a way to persuade people to substitute the new gases for CFCs.
I believe that the kernel of this issue is to be seen within what my noble friend Lady Nicol has explained as coming from ICI. Is it not the case that all the testing of these new gases is carried out by the companies and not by the Government and that commercial confidentiality comes into it? I

775
particularly welcome the proposal in the Bill that an independent committee should be set up. I hope that it will look at such issues and not simply concentrate on the abolition of CFCs at all costs. That certainly requires a diminution of present day commercial confidentiality because here we are talking not about the profits and secrets of a company but about the future of mankind.
The second point which I should like to emphasise follows on from that. I entirely agree with the noble Earl that the greatest challenge to mankind for the next 50 years is to find the means by which the half of the world which is outside the market —the third world and developing countries —can reach at least a reasonable sustainable standard of living without following the bad example which we have set in poisoning the atmosphere and destroying the planet. That is a tremendous challenge.
My worry about the Bill is that is seems to confine itself to this country. I should like to see within it not just a prohibition on the use or emission of CFCs in this country but also on their production in this country for export. That might be implied in certain of the wording but it is not sufficiently specific to protect what I believe is the very vulnerable third world to which appliances will be exported from this country. After all, the United Kingdom today is the biggest exporter in the world of CFC gases. In 1988 it exported to 117 different countries.
It is surely our responsibility to ensure that this country does not export either appliances which contain CFCs or appliances which contain any other noxious gases. We must devote our research, particularly our chemical research, in this country to the development of environmentally benign technologies which will allow third world countries to advance their standard of living at least to a point at which they can sustain life but without going through the destructive uses to which we have put the industrial revolution.
With those observations and queries which I hope the Minister or perhaps the noble Baroness can clarify, I support the Bill although I believe that it can be strengthened. I hope that she will continue with the Bill in order that it can be strengthened in the ways in which I have indicated.
7.59 p.m.
Lord Addington: My Lords, the Bill probably strikes at the heart of the environmental debate. We are not only saying that we should do something but it gives us a timetable in which to do it. On these issues there has been an unfortunate tendency for people to say that something should be done but here we are saying that it should be done within a given period and what will happen if it is not done; in other words, we are setting ourselves a series of standards. There are not enough concrete suggestions and aims which we can fulfil. In the environmental sphere there is far too much talk and supposed good intentions. We must start taking more and more measures along these lines so that we have something at which to aim.
Once that point is made, I should like to say that the Bill fulfils that aim, in that it sets out a timetable
776
in which we should get rid of these harmful gases. Once we have done that we can then pat ourselves on the back and say to those people in the developing world "We have done something with the technology that we have created which is part of the industrialisation you are trying to achieve for higher economic standards. Will you follow?" Once we have instituted the means to fulfil this regulation we will also be able to offer them the aid and the technical process for ensuring that they can follow.
Many noble Lords who have spoken in this debate have pointed out the problem which runs the whole way through the environmental debate. We have set standards for economic growth and activity which require a degree of industrialisation. Industrialisation tends to be damaging to the environment. We struggled through industrialisation which meant that possibly we did irreparable damage to our domestic environment. It is worth remembering, for instance, that Europe became completely deforested long before we even considered the problems of the rain forests. We are asking people to do what we say and not what we do. We must be able to offer them help. On that score we must be prepared to offer them technical and also economic aid.
Thus it is vitally important—this brings me back to my initial point —that we ourselves set an example by ensuring that such measures as this are in law and also that we have the technical ability to help others achieve the same aim. On those points I believe the Bill should stand. After the speeches of other noble Lords in this debate, I think there is nothing left to be said.
8 p.m.
Lord McIntosh of Haringey: My Lords, this Bill has been welcomed by every speaker who has addressed the House this evening and I do not intend to break with that. I welcome the Bill; I welcome the thinking behind it and I welcome any attempt which is made to strengthen the provisions of the Montreal Protocol and the decisions which have been taken by this and other governments throughout the world to deal with the horrific problem of the depleting ozone layer.
As a number of noble Lords have rightly said, this is not simply a problem for this country. It is a world problem and it is a problem which increasing industrialisation and improving standards of living, particularly throughout the third world, will exacerbate. It is undoubtedly the case that people in third world countries will not be satisfied by what the noble Lord, Lord Addington, rightly called "Do as I say and not as I do". We have carried out our industrialisation process for two centuries virtually regardless of the environment. Now, when we are sufficiently well off to afford both the research and the minor inconveniences of dealing with CFCs in aerosols, for example, we become pure and say to the third world, "You cannot have the refrigerators we have enjoyed even though your climate is very much worse in most cases". We tell them they will have to replace the gases used with a substance which, as my noble friend Lord Hatch says —I do not know the background to his figures but they

777
sound convincing to me —will be more expensive than the existing gas used in refrigerators and may also be substantially more damaging to the ozone layer than CO2.
Therefore, it is clearly necessary for us to be pure, but that is not enough. The fundamental difficulty with this Bill is inevitable in the idea that it should be brought into British law; that it can apply only to the British Isles and not apply to any other country. Lying behind the admirable intention of the Bill is the determination and intention, which I hope the noble Lord, Lord Reay, will confirm in winding up on behalf of the Government, to participate actively in world measures, global measures, to reduce ozone depleting substances. That is the crux of the matter and that is what will have the very real effect we need to slow down, let alone halt or reverse, the damage which is being done and has already been done to the ozone layer.
I have a number of detailed problems with regard to the drafting of the Bill, but they can be dealt with perfectly well in Committee. I have a difficulty about the meaning of the word "eliminate". Clause 1 sets timetables for the elimination of ozone-depleting substances in the manufacture of flexible foam. That I can very well understand, though I understand from the Royal Society of Chemistry that the alternatives presently available have the problem of not being as fire resistant as the flexible foam which is now used. There may be a problem in that direction with regard to the deadline which is proposed.
I understand what is meant by the elimination of CFCs in aerosols, though again we all understand from the aerosol manufacturer's association that 99 per cent. of aerosols produced in this country no longer have CFCs in them. The only problem that remains is with aerosols such as asthma inhalers and pain relieving sprays, for which no suitable substitute has yet been found.
I understand what is meant by the use of CFCs and ozone-depleting substances in solvents used in manufacturing processes. Again, I would only say that we are not yet clear as to the alternatives. That will need to be brought out more clearly in Committee. Despite that, there is a difficulty in the definition of what is meant by "elimination". Does it mean only the elimination of products manufactured in this country? Does it mean the elimination of imports and exports of products using ozone-depleting gases?
Article 4 of the Montreal Protocol proposes the elimination of exports of products using ozone-depleting substances by 1st January 1993. Is that included in the intention of the Bill? That could well be clarified when we deal with the Bill in Committee. Does that mean the elimination of emission into the atmosphere on scrapping? Article 2 makes it clear that that applies to CFCs; it is not clear whether it applies to other ozone-depleting substances. There may be improvements to be made in that direction.
I suggest that there is also a problem with the use of the phrase "other ozone-depleting substances". Unless the noble Baroness means to restrict those ozone-depleting substances to those controlled
778
substances which are defined in the annex to the Montreal Protocol, it is a very wide phrase. A large number of things deplete the ozone layer other than those controlled substances. Reference has already been made to CO2 and chlorine gas. They are less ozone-depleting weight for weight —whatever the measure is —but there are far more of them around. Unless we intend to take action against CO2 as emitted by the internal combustion engine, for example, anything that we do with CFCs is relatively trivial. The problem of the ozone layer is much wider than the scope of this Bill if, as I think I am right in saying, the Bill proposes to cover only the controlled substances under the Montreal Protocol.
I do not criticise the intention of the Bill. I do not say it is not worth enacting, but there are many more things which have to be done if we are to tackle this problem. As all noble Lords have said, notably my noble friends Lord Hatch and Lady Nicol, this is a world problem. It is the intention of the Government to participate actively in tackling the world problem with the contribution of resources from this country, and that is the real test.
8.10 p.m.
Lord Reay: My Lords, this Bill addresses itself to a subject of vital importance. Without the ozone layer we would suffer a greatly increased incidence of skin cancer and eye disorders. There would probably be damage to the immune system, increased disease in animals, reduced crop yields and damage to the plankton at the bottom of the food chain. As yet, the massive depletion which we see each spring over Antarctica (the ozone hole) does not appear elsewhere. However, it is caused by CFCs, halons and methyl chloroform and could appear elsewhere if we continue to use these chemicals as we have in the past.
Moreover, the chemicals which damage the ozone layer also contribute to the greenhouse effect. So what we do to protect the ozone layer does help to reduce the prospect of global warming. We cannot protect the ozone above our heads by limiting only our own use of CFCs. The effect of emissions is worldwide, wherever they take place. For this reason, the Government's policies are overwhelmingly directed towards achieving a global response to what is a global problem. Action by one country is of relatively little effect.
In the international sphere we have a leading position which we are determined to maintain. It was British scientists, in the British Antarctic Survey, who first discovered the Antarctic ozone hole. We played an important part in the negotiation of the Vienna Convention, and the Montreal Protocol, which limits the production and consumption of CFCs and halons. Soon after the protocol was agreed, however, we received scientific confirmation that the ozone hole was caused by CFCs, and that more general ozone depletion over the northern hemisphere was also taking place. We immediately accepted the need for a much stronger protocol, and we ensured that the European Community took a firm and early stand, pledging a phase-out of CFCs by the end of the century.
The Saving the Ozone Layer conference, which we hosted in London last March, in partnership with

779
the United Nations' environment programme, was a great success. One hundred and twenty-three countries attended and 85 of them sent Ministers. They all agreed, for the first time in an international forum, that CFCs would have to be phased out entirely.
That message has taken root. The Montreal Protocol is now due for revision, and negotiations are taking place aimed at a considerable strengthening of its provisions. We expect these changes to be adopted at the second meeting of the Montreal Protocol parties, which we will host here in London in June. There is general agreement that CFCs should be phased out, at least in the developed countries, by the year 2000. In the negotiations the European Community is calling for faster reductions than any other participant. Its position is based on our own proposals. The EC proposals call for a 50 per cent. reduction in 1986 levels of CFC production and consumption by July of next year, an 85 per cent. reduction by July 1995, and a complete phase-out by the beginning of the year 2000. The Bill before us asks the Secretary of State to propose a timetable for the total elimination of CFCs by 1995. However, we believe that our proposals go as far as is practicable in present circumstances and perhaps I can explain why.
Many CFC uses can be ended by using existing technologies in new ways. We believe that British industry has already reduced its use of CFCs by 50 per cent. by such means, even though that is not required by the existing protocol until 1999. However, there are other uses, particularly in refrigeration, medical and some industrial aerosols, and rigid polyurethane foams, which will need new substitute chemicals currently being developed by the chemical manufacturers.
Progress on these chemicals is good, but their introduction is not a quick process. Investment in production facilities cannot be made until we are sure that the new chemicals can do the job, and until we are sure that they are better than CFCs for the environment. Perhaps the lengthiest aspect of their development is adequate toxicity testing; namely, making sure they are safe for human beings to use. Some of these new chemicals will be available by the 1995 date provided for in the Bill, but others will not. And for some applications, particularly in the medical field, proper toxicity testing and certification will take us close to the end of the century. It is for these reasons that our own proposals for the elimination of CFCs use do not go as fast as those set out in the Bill.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for giving way. I have listened very carefully to his explanation of why the timetable proposed in the Bill is thought to be impracticable. Can he answer the point made by the noble Baroness. Lady Robson, as to why Sweden has been able to improve on it? Can the Minister say what it is that the Swedes have discovered, apart from social democracy, which makes them so much better at this issue than us?
Lord Reay: My Lords, I cannot answer for the situation in Sweden. We have to negotiate within the context of the European Community and together we have to reach a co-ordinated position.
Lord McIntosh of Haringey: My Lords, I am grateful for that answer. The noble Lord should have been able to answer the question because it is well known that Sweden has an earlier deadline. If the noble Lord cannot answer now will he be good enough to write to me and to the noble Baroness, Lady Robson, with the information that is required?
Lord Reay: My Lords, I am happy to give the noble Lord the assurance that I shall write to him on that matter. As well as the overall elimination of CFCs the Bill provides for faster timetables to eliminate their use in particular areas of application; namely, by July 1991 in the case of flexible foam and aerosols, and by January 1993 when used as a solvent.
Our approach, and the approach of many governments around the world, is to limit the overall production and supply of these chemicals, and to let industry get on with the job of finding substitutes. If we felt that they were failing to put in the necessary effort to do so, we would certainly want to consider legislation against particular uses. But so far, all the evidence is that industry is falling over itself to stop using ozone damaging substances. Almost all aerosol production has now been converted away from using CFCs. The manufacturers of flexible foam also expect to stop using CFCs by the end of 1993.
The Government's approach of limiting overall supply is followed in the Montreal Protocol and in the European legislation which implements it in the community. Within that framework, the European Commission is negotiating voluntary agreements with different sectors of industry to seek to ensure that they abandon CFCs as quickly as they can. These agreements can cover a range of measures more effectively than legislation could provide for. They channel industry's efforts into co-operative action to achieve the quickest possible results, rather than coerce them with rigid legislative deadlines. The knowledge that supply is disappearing provides the background incentive for all sectors of industry to move away from CFCs as quickly as they can.
The Bill requires the elimination of CFCs and methyl chloroform used as solvents by 1993. Again, the Government cannot judge precisely when they can safely be replaced in each application. Solvent users will be constrained by the limitations placed on the overall supply of CFCs. The supply of methyl chloroform must also be reduced, and we will argue to that effect in the renegotiation of the Montreal Protocol.
The Bill requires that the release of CFC refrigerants into the atmosphere should be an offence. It is important that those who deal with refrigeration equipment should act responsibly, and ensure that refrigerant is returned for recycling or safe destruction. However, we believe that this is best encouraged by incentive rather than legislation. CFC refrigerants are colourless and odourless gases, which would make legislation difficult to enforce. The incentive is provided by the reduction and elimination of CFC production in that eventually

781
the only material available for maintaining equipment using CFCs, will be that which is recycled from old refrigerant.
The demand from consumers that companies act responsibly has resulted in supermarket chains leading the way in responding to this need. Local authorities and retailers alike are starting to respond to the public demand that old fridges and freezers are drained of refrigerant before going for scrap.
Last week my honourable friend the Minister for the Environment and Countryside launched a new nationwide service to recycle refrigerant from domestic appliances, to which the noble Baroness, Lady Robson, referred. Every retailer, and every local authority, will now be able to get advice on how to collect the CFCs from old machines, and will be able to use ICI's containers and its national network of distribution centres, to return the refrigerant for recycling. This splendid initiative is wholly commendable and demonstrates the private sector's constructive response, without the need for specific legislation.
The Bill also calls on the Secretary of State to establish a committee to report on the whole question of recycling and disposal of CFCs and other ozone depleting substances. In fact the Department of Trade and Industry has already commissioned consultants, with very similar terms of reference. The Government will consider what further measures may be necessary in the light of their report.
Finally, the Bill would require products containing CFCs to be labelled as such. As noble Lords may be aware, last August the Government issued a consultation paper on the question of environmental labelling of all products. The consultation showed widespread support for a Europe-wide voluntary scheme which manufacturers can use if they can show that their products are friendly to the environment, taking into account their whole lifetime from manufacture through use to ultimate disposal.
My right honourable friend the Secretary of State has proposed such a scheme in the European Community Environment Council and, as a result, we understand that proposals from the Commission are imminent. This will go much wider than CFCs, and will offer consumers the ability to choose products which are made with due regard for the environment as a whole. It is useful to know that a refrigerator has been tested as energy efficient, is easy to recycle, and contains a minimum of CFCs.
The noble Lord, Lord Hatch of Lusby, asked about the new gas HFC134A. I understand that this is to replace CFC12. It contributes to the greenhouse effect only 10 per cent. of the damage done by CFC12 and it does no damage to the ozone layer. The noble Lord also asked me about the testing of new gases. This is done and paid for by the companies themselves but they have to inform the authorities about the results. I also understand that the world's chemical companies are co-operating and pooling their results on toxicity and safety testing.
In conclusion, I should like to say how much I welcome the opportunities for debate provided by
782
the Bill. We applaud the intentions behind the Bill and we agree that the present Montreal Protocol is quite inadequate. It is true that to some extent the Bill and the Government address the problem in different ways. In some areas this is because we are a little less optimistic about the speed at which new substitutes can be introduced. In others it is because we are taking action in a broader context and our policy for protecting the ozone layer forms part of that action. Our prime concern is that nothing should inhibit our full participation in the international agreement which is essential for any resolution to this problem. I am sure that noble Lords will wish the Government every success in their efforts to secure a truly effective global response when they host the second meeting of the Montreal Protocol parties in June.
Baroness Robson of Kiddington: My Lords, I thank the noble Lord, Lord Reay, and all other noble Lords who contributed to the debate. Of course we wish the Government every success in hosting the conference in June. There is no difference between the Government's response and what I am trying to do in the Bill. There is no reason at all why a country on its own should not take the kind of action that Sweden has taken. Noble Lords have said that it is a world problem and that what one country does has little effect. But it has some effect. We together create the enormous effect. Every country that withdraws and sets a timetable will help in regard to ozone depletion.
We hear about the difficulties of setting timetables because we are not yet quite certain when alternative substances will be available. We are all quite sure that an enormous amount of work is being done on these alternative substances. But I have learnt throughout my life that to have a time limit on something concentrates the mind beautifully. One manages to put in more effort and one achieves the results sooner. We have to start somewhere. I believe that we should start with our own country, so that when we go to international conferences we can say: we have done it, we have set an example, we have taken action. I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Human Fertilisation and Embryology Bill [H.L.]
8.28 p.m.
House again in Committee on Clause 3.
[Amendment No. 15 not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 16:
Page 2, line 16, leave out ("after the appearance of the primitive streak") and insert ("more than 14 days after the gametes are mixed, exclusive of any time during which the embryo is stored.").
The noble Lord said: I want to emphasise that this amendment, which should be read in conjunction with Amendment No. 23, is not concerned with any matter of principle but simply with a question of drafting, in the hope that several lines of the Bill can be deleted and at the same time the Bill can be made more intelligible.
Clause 3(3) at present states that a licence cannot authorise,
"keeping or using an embryo after the appearance of the primitive streak".
Subsection (4) explains this but takes up four lines in doing so. The primitive streak is to be taken to have appeared,
"not later than the end of the period of 14 days".
My feeling is that it would be clearer, briefer and better simply to say that a licence cannot authorise keeping or using an embryo,
"more than 14 days after the gametes are mixed, exclusive of any time during which the embryo is stored".
That says precisely the same thing but avoids bringing this mysterious primitive streak into the matter and having to explain what is meant by "primitive streak".
Embryologists do not notice whether or not the primitive streak is there. They do not say, "Wait a moment, boys. There's a primitive streak here, we have to stop experimenting". They simply assume that 14 days after the gametes are mixed it has appeared, and experiments cannot go on after that period. Therefore I propose by way of Amendment No. 16 to insert certain words and by way of Amendment No. 23 to leave out subsection (4). I beg to move.
8.30 p.m.
The Lord Chancellor: As noble Lord, Lord Kilbracken, explained to the Committee, there is no question of policy or substance here; it is purely a drafting question. While I entirely sympathise with his intention to simplify the drafting of Clause 3(3) in seeking to remove the need for Clause 3(4) by deleting the reference in Clause 3(3)(a) to the "primitive streak", I think that it would be unfortunate if the amendment were accepted.
In fact, the primitive streak may occur earlier than 14 days after the process of fertilisation is complete. It is that point rather than the precise timing which is crucial because after the primitive streak appears it is clear that it may develop in a way which leads to a single or a multiple pregnancy. The primitive streak gives a clear sign for the cut-off point for embryo research which the Warnock Committee recommended and upon which Clause 3(3)(a) is based. I think that we should lose more than we would gain in simplified drafting by omitting any reference to it.
In the light of that explanation, I hope that the noble Lord will not wish to press the amendment.
Lord Kilbracken: I shall not press the amendment. However, I am not convinced by what the noble and learned Lord said. He pointed out that the appearance of the primitive streak may occur earlier than 14 days. Indeed, that may be so. But the point is that it does not matter whether it occurs earlier than 14 days. It does not matter if it occurs after 10 or 12 days. I say that because, for the purposes of the Bill, if we look at subsection (4) it simply states,
"the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days".
784
That is what really matters. We are not going by whether the primitive streak has actually appeared; we are simply going by the lapse of 14 days after the mixture of the gametes. Therefore what the noble and learned Lord said about the appearance of the primitive streak perhaps occurring earlier than 14 days seems to me to be irrelevant.
I do not know whether the noble and learned Lord would like to reconsider the matter. I am not, however, asking him for any kind of undertaking. I must say that I am not convinced by his reply but, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Elles Baroness Elles moved Amendment No. 17:
Page 2, line 18, leave out ("other species of animal") and insert ("non-human species").
The noble Baroness said: This amendment seeks to clarify the intention of the Government as regards this subsection. We have been told by my noble and learned friend the Lord Chancellor that the Bill is for ordinary people. But, apparently, in Clause 3(3)(b) we seem to have been reduced to a species of animal. It would greatly assist if we could have some clarification on the matter.
In Clause 3(3) there is no mention of humans as opposed to animals. Therefore, when it refers in paragraph (b) to,
"any other species of animal",
one wonders which other species of animal and what it is to be compared with. It appears, therefore, that the subsection is not particularly clear. I do not wish to go into any philosophical or biological arguments as to genes and species—nor, indeed, are we playing the game of animal, vegetable or mineral —but the fact is that we must make clear what is proposed in the clause. I assume that it is the Government's intention to say that a licence cannot authorise the placing of an embryo in the womb of any species other than a human being —and, consequently, not an animal.
As my noble and learned friend will know only too well, in law the definition of an animal, and I quote from Halsbury, Volume 2, paragraph 201, is:
"The term animal includes all creatures not belonging to the human race".
Therefore, I should have thought that in law my amendment would be perfectly justifiable in substitution for Clause 3(3)(b). I shall be most grateful for my noble and learned friend's consideration of my amendment. I beg to move.
Lord Kilbracken: I should like to say that I completely agree with the noble Baroness. I think that the wording she has proposed is greatly preferable. However, there is another point which I should like to draw to the noble and learned Lord's attention. Regardless of whether the noble Baroness's amendment is accepted or the present text remains, it is not possible to place an embryo in a species. That applies to both drafts. So far as I am aware, the embryo is placed in the womb of a member of a species. Therefore to talk about placing an embryo in a species is, if I may say so, nonsensical.
The Earl of Halsbury: It may be appropriate if I intervene here on this matter on the basis of advice given to me by a very skilled experimental embryologist. Trans-specific fertilisation is not possible: God has set his seal against it. The zona pellucida of the ovum and the tip of the sperm are species specific. In other words, you cannot have a trans-specific fertilisation. It is a nonsense. There are, however, certain exceptions to that rule. For example, very closely related species such as the horse and the donkey can interbreed. However, their offspring are not fertile jennets, they are mules.
However, there is one exception which has apparently been presented to us as a gift. I refer to the hamster. It does not have a zona pellucida and therefore can be penetrated by human sperm in order to assess the viability of the male who originally ejected the sperm. The hamster is the only animal known to science in which that can be done. From the standpoint of experimental embryology it is exactly like a piece of litmus paper, which turns pink on contact with acid and blue on contact with alkaline. The test indicates whether a sperm is viable.
As Members of the Committee are doubtless aware, the Australians are very sensitive about the implications of importing animals into their country. They had a plague of rabbits at one time. Australian scientists have been working very hard to try to find an alternative to the hamster. However, they have found it quite impossible to do so. Therefore, Australian embryologists now import frozen hamster ova. I think that that factor should be remembered when we are talking about trans-specific fertilisation. As I said, God has set his seal against it. It is only possible in very rare circumstances. Of course, you can interbreed a lion and a tiger to get a liger or a tigon, but, again, they are just big cats which differ somewhat in their markings but not by much more than that. In remotely related species this cannot be done.
Lord Kilbracken: My noble kinsman Lord Halsbury is almost always right. However, if he is right on this occasion I wonder whether he can explain paragraph 3(4) of Schedule 2, which reads:
"A licence under this paragraph may authorise fertilisation by mixing human sperm with the egg of another species of animal for the purpose of developing more effective techniques for determining the fertility of human sperm".
The Earl of Halsbury: The noble Lord is quite correct; indeed, that is exactly what I said.
Baroness Elles: As the noble Earl, Lord Halsbury, is giving us lessons in biology, can he confirm that one cannot,
"mix gametes with the live gametes of another species of animal",
as referred to in Clause 4(1)(c)? It would be most helpful if the noble Earl would give us the benefit of his advice on the matter.
The Earl of Halsbury: I should say that Clause 4(1)(c) is otiose.
The Lord Chancellor: I do not think that we should pass this particular amendment for the moment. My noble friend has made a point upon which I should like to take the advice of parliamentary counsel.
786
Moreover, the noble Lord, Lord Kilbracken, although he has no particular amendment on the matter, also appears to have a pretty good point which I should like to draw to the attention of the draftsman. I hope that my noble friend will give me the opportunity to do so.
Baroness Elles: I am most grateful to my noble and learned friend. On that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 18:
Page 2, line 21, after first ("nucleus") insert ("or component of a nucleus").
The noble Earl said: I tabled the amendment at the suggestion of a skilled experimental embryologist, to cater for the possibility of genetic engineering in the human species. Micromanipulation in the hands of embryologists is becoming incredibly sophisticated and more and more powerful, if I may put it that way. The ability to manipulate microscopic elements of a living cell is fantastic if one goes into the detail of it. The two amendments are designed merely to include not only a nucleus but any component of a nucleus. I beg to move.
The Lord Chancellor: Clause 3 provides that a licence cannot authorise replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo. This amendment would provide, in addition, that a licence could not authorise replacing a nucleus or component of a nucleus of a cell of an embryo with a nucleus or component of a nucleus taken from a cell of any person, embryo or subsequent development of an embryo.
I can appreciate the spirit in which the amendments are moved, but the Government believe that the purpose of the amendment is already provided for elsewhere in the Bill. Paragraph 1(4) of Schedule 2 prevents a licence for treatment being granted to authorise altering the genetic structure of any cell while it forms part of an embryo. Paragraph 3(3) of Schedule 2 prevents a licence for research, if Parliament decides to authorise such research, being granted to authorise altering the genetic structure of any cell while it forms part of an embryo except in circumstances provided for in regulations. Those regulations would require an affirmative resolution in both Houses of Parliament. That regulation-making power reflects the policy set out in paragraph 36 of the White Paper which indicated that there should be
"a power for Parliament itself, by affirmative resolution, to make exceptions to [the prohibited activities] if new developments made that appropriate".
Replacing a nucleus or component of a nucleus of a cell of an embryo with a nucleus or component of a nucleus taken from a cell of any person, embryo or subsequent development of an embryo would also involve altering the genetic structure of any cell while it forms part of an embryo. Thus, except in circumstances provided for in regulations, the activities the amendment seeks to prevent are already prohibited by the provisions of Schedule 2 as it is at present drafted.

787
As the activities described in the amendments would involve altering the genetic structure of a cell while it forms part of an embryo, the Government are satisfied that they are already provided for in Schedule 2 and therefore oppose the amendments.
The noble Earl will appreciate, if I am right so far, that the power of Parliament to approve by affirmative resolution exceptions in the light of developments would be affected by the amendment if it were accepted. In the light of that explanation, I hope that the noble Earl will feel that, although the concern that he has expressed is a real one, it has been covered.
The Earl of Halsbury: On the basis of the assurance given to me by the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No 20:
Page 2, line 22, leave out from ("from") to end of line 23 and insert ("any other cell.").
The noble Lord said: Once again, this is an amendment which seeks merely to shorten the Bill by about one line in Clause 3(3)(d), which at present provides:
"A licence cannot authorise—replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo".
I propose that that should simply read:
"replacing a nucleus of a cell of an embryo with a nucleus taken from any other cell".
That is three words instead of a dozen. I beg to move.
The Lord Chancellor: The prohibition in Clause 3(3)(d) is designed to prevent cloning using human embryos. The reference which the amendment seeks to take out to
"replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo of subsequent development of an embryo"
is designed to specify the circumstances in which those activities are to be prohibited. Although the amendment is superficially attractive in that it may have the same effect as the current drafting, this provision is an important one and it would be unfortunate if there were any loss of clarity. We believe the emphasis on the circumstances to be important.
Lord Kilbracken: I am sorry that the noble and learned Lord found that my proposal was only superficially attractive. I thought that it was perfectly attractive. "Any other cell" clearly includes all the cells already enumerated in the Bill. However, if for those obscure legal reasons the wording that he already has is indispensable, I shall of course beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 21:
Page 2, line 23, at end insert —
788
("(e) placing an embryo in an unmarried woman.").
The noble Lady said: I should like to speak also to Amendments Nos. 26 and 33A. The amendments form a package. The object of the amendment is to prohibit the provision of AID to unmarried women, lesbian couples or unmarried couples. It is true that many single women have succeeded in giving their child a good home and upbringing, and that their children are wanted and very much loved. No one would deny that; but their children must, in the nature of things, suffer some disadvantage from the lack of a father, if only that they have only one parent who loves them and belongs to them instead of two.
It does not end there. Children learn primarily from example, by copying what they see. It is by example that a boy learns how to be a responsible husband and father and how to treat his own children in turn. It is by example that a girl learns how to be a wife, from seeing how her mother cares for her father. So the father is enormously important, if only as a role model. Most widows who have had, through no fault of their own, to bring up their children single-handed will agree with what I have just said.
It is for similar reasons (the role model reasons) that the Committee may consider that lesbian couples should not be eligible to receive AID or in vitro fertilisation services. Some people argue that since it is legal, and often desirable, for single women, and even men, to adopt children, it should also be legal for them to have AID, but there is a great difference between placing a child who already exists with a single person when that child would otherwise be brought up in an institution, and deliberately creating a child to be brought up in circumstances which must be less than ideal.
There is also the question of whether in vitro techniques should be made available to couples who are not legally married. Many people believe that it is all right to make such services available to unmarried couples who are in what is called "a stable relationship", but if the relationship is really so stable why will they not get married? Until April of this year there has been and will be the fiscal reason: that as long as husbands and wives were taxed together they would be worse off financially, and there were also disadvantages as regards mortgages. But that excuse for not marrying will have vanished on, I think, 6th April this year, before this Bill can become law.
In most cases the only real reason for a cohabiting couple not marrying is that one party, or both parties, want to feel free to break up the partnership should they wish to do so without the expense, delay and inconvenience of a divorce. There are exceptions. There may be somebody whose marriage has failed miserably and whose husband, or wife, will not divorce them, and who does form a stable relationship with another man, or woman. Those may be the exceptions, but otherwise I must say that I think that the relationship is not really as stable as it sounds, and a child of it may very well end up with only one parent.
Most doctors who provide these services are very careful and responsible as to whom they will treat with what is, at present, a scarce and expensive form

789
of treatment. But there have been cases where IVF treatment has been given to unmarried women, or unmarried couples. Whether it is in this country or not I am uncertain. Surely, therefore, some prohibition of this should appear on the face of the Bill. It should appear not in regulations, which can be altered, possibly by negative resolution at the whim of a future Secretary of State; nor in regulations made by the licensing authority, to be altered at the whim of the licensing authority; but on the face of the Bill, where an Act of Parliament will be required to change it.
Surely too the dictum of the United States Declaration of the Rights of the Child 1959, Principle 2, should be our guiding principle throughout this Bill. That is:
"The child shall enjoy special protection and shall be given opportunities and facilities by law and by other means to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner, and in conditions of freedom and dignity. In the enactment of laws for this purpose the best interests of the child shall be the paramount considerations."
That was the guiding principle of the recent Children Act, and all through our deliberations on that Bill last year the noble and learned Lord the Lord Chancellor kept reminding us of that fact.
Much as we all sympathise with the plight of childless women who may not have the good fortune to be happily and legally married, their best interests are not necessarily the best interests of such children as AID and in vitro fertilisation techniques may enable them to bear. There would seem to be a conflict of interest here. The interests of those who cannot have children in the normal way and want them, and the interests of the children they may have are not necessarily compatible. Under these circumstances, surely the best interests of the children must be the paramount consideration. I beg to move.
Lord Ennals: I appreciate what lies behind the amendment moved by the noble Lady, but I am very unhappy and I hope that the Committee will not go down what I think is a disturbing road. I believe myself to be a family man, sharing family values. I do not think it is my responsibility to tell other people what they should do. Having children is a private area of human affairs. I believe that it is really not for the state to decide who should or should not be allowed to bear children.
I ask, who are we to decide? The noble Lady gave some examples, and suggested that if any woman does not get married, it is for some particular reason. Well, I think she must decide for herself. It is not for us to decide for her, or on her behalf, why she did not get married. Parenting, in any case, is a high-risk activity. It may be by conclusion that there are some women, or some couples, who are likely to be good mothers and parents and some who are not. That judgment may be affected by all sorts of factors such as age, temperament, mental and physical health, and quality of housing, etc. The question of whether a couple has gone through a form of marriage vows is hardly relevant to the quality of parenthood.
I know, and I am sure that the noble Lady knows, of some marriages that have hopelessly broken down. She knows that a high proportion of our marriages
790
break down. There are some homes where there is a marriage vow, but my God there is no love within those families. Yet, on the other hand, I know very well a young woman who had two children outside wedlock, and 10 years later, now married, has a third child. She was no less a good mother before getting married than she is now. She has always been a good mother.
I find these amendments most unfortunate. In a sense if we were to pass them we would be bossy, judgmental, and interfering. We must respect the right of a woman, after appropriate counselling —and I emphasise the importance of counselling in so many aspects of this Bill —to make her own decision. Marriage is no indication necessarily of a serious commitment to creating a loving home.
Other medical treatments are not denied to unmarried women. There is no suggestion that the National Health Service should not offer its services, or should offer less services, to unmarried women than to married women and married couples. There is no suggestion that social benefits should be denied to cohabiting couples. There is no discrimination on these grounds in the field of education, of schooling. It is a fact that between one in three and one in five families with school-aged children have only one parent. There are many more families where there have been changes in who takes responsibility for the parenting, so that the child is, for instance, living with the mother and a stepfather.
There are a number of other factors. At least one in eight couples in this country are thought to have an infertility problem at some time. Many seek a solution through reproductive technologies such as in vitro fertilisation. In comparison, the number of single women using these technologies is on a tiny scale. We are not dealing with something huge. I was told that the British Pregnancy Advisory Service has eight infertility clinics, and fewer than 200 single women have become pregnant in the 12 years of the donor insemination service.
Some believe it wrong deliberately to bring children into a single-parent family though, as the noble Lady said, adoption agencies now accept single women and single men as adoptive parents. They must have done it on the basis of sound judgment.
Lady Saltoun of Abernethy: Would the noble Lord give way: I said that I thought that that was a different situation altogether. The child already existed. It was not being created for the purpose of going into a one-parent family.
9 p.m.
Lord Ennals: The noble Lady made that point but I was not quite certain of the significance of that statement. Often a couple who are living together, not necessarily in wedlock but cohabiting, have as great a need for children to bind them together and create a family as an adoptive family. Many of the judgments that have been made support that view. In any case, there is no reason why a single mother should not subsequently marry and allow her child to gain a father, whereas if she delays having a child until she has found her lifelong partner it may be biologically too late for her to have a child.

791
There are also difficulties as regards enforcement of the law. If a marriage certificate had to be produced, a clinic would have to prove that a woman was not separated, divorced or widowed. Such a law would encourage marriages of convenience. We also have to consider whether this kind of restriction would be in breach of the European Convention on Human Rights. The convention recognises and guarantees the right of every individual to found a family and to have his or her private and family life respected. Thus it preserves for the individual an area of strictly private morality in which the state may not intervene. I hope, for those and other reasons which will no doubt be presented, that this amendment will not go further this evening.
Lord Hailsham of Saint Marylebone: I do not wish to impugn in any way the sincerity of the motives which led the noble Lady to promote this amendment. However, I think it is a misuse of the Bill. The Bill is designed to control, more or less on the lines of the report of the noble Baroness, Lady Warnock, the subject of in vitro fertilisation and research into embryology.
One must consider the legal consequences of this amendment, if it were passed. If a woman is living apart from her husband she may, if the amendment is passed, quite legitimately, though married, have an AID offspring. Nothing will happen to prevent that. If on the other hand she is unmarried she will be liable, as will the donor if he acts knowingly, to a penalty of imprisonment. I wonder whether there is much sense in that.
I am sorry to say that there will always be an intelligent minority who prefers what I might call the good old-fashioned version of procreation. If those people choose to produce an unmarried parentage together by the good old methods of procreation, whether living together or not, they are not touched by this amendment. If they are not living together the absence of a father will be just the same whether the child was produced by ordinary sexual intercourse or by AID. There is a total anomaly about trying to prohibit AID by the methods of this Bill, with criminal sanctions, while refusing to go the whole hog —I hope that that expression will not cause offence to anyone —in prohibiting, as the Puritans did in the 17th century, both adultery and fornication. Fornication and adultery were prohibited by the Puritans but that measure proved to be disappointingly unpopular. The Restoration brought in Charles II and jolly Nell Gwynn.
I hope I am not being unduly frivolous about what is a serious subject. However, I do not think we should make asses of ourselves. This kind of amendment, which is designed to prevent AID because it is AID, but to a limited extent, while allowing every other kind of sexual aberration without criminal sanctions, would make asses of us.
Baroness Elles: We are talking about IVF. Therefore, we are not talking about AID. The proposal by the noble Lady, Lady Saltoun, is to exclude from the provision single unmarried women who presumably are not necessarily infertile —I
792
understood IVF was for infertile couples —and who do not form part of a couple. Will the noble and learned Lord address himself to that aspect of the matter? I believe his remarks did not touch on that.
Lord Hailsham of Saint Marylebone: I must apologise to my noble friend for my terminological inexactitude. The point is valid whatever name one gives to the process. When I was still single I received a telephone call from a totally unknown woman asking me to become the father of her child. In those days AID had not been invented. I had certainly not heard of AIF or any of the other alternatives. I had only heard of fornication. At any rate I treated the request as a compliment, but I respectfully declined the invitation. But I do not believe the morals of such situations affect the validity or otherwise of this amendment.
Lord McIntosh of Haringey: The noble and learned Lord must not keep us in suspense. What did he do?
Lord Hailsham of Saint Marylebone: I respectfully declined the offer, while thanking the young lady for her courtesy in offering me the first chance, if it was the first chance.
Lord McGregor of Durris: I share many of the anxieties of the noble Lord, Lord Ennals, about these amendments. In the first place they will introduce a new form of discrimination against women. The Bill as amended would exclude unmarried, infertile women from certain treatments involving embryo research, but would give unmarried men who can benefit from such treatments access to all the facilities.
Further, I do not think that the noble Lady has allowed sufficiently for the very large numbers of women who would be affected by their exclusion from these services. Statistical data recently available for the first time, published in a valuable article by John Haskey and Kathleen Kiernan in the last number of Population Trends, show that in 1987, 900,000 couples were cohabiting and living as families with their 400,000 dependent children. Two-thirds of those couples were single people who had never married. That is a very large number. Half of them were under 30. The number of never-married women aged between 18 and 49 cohabiting trebled in the eight years between 1979 and 1987.
Those are families. Their stability is suggested by the fact that more than half of all the men and women who married in 1987 had cohabited for less than two years previously. For a very significant proportion of those 900,000 couples we are seeing the transformation of families into marriages.
Under the amendments, those of such couples who are infertile —and between 12 per cent. and 15 per cent. of them will be in that situation —will be unable to say, as their 18th century forebears would have said, "Let us get married when you are pregnant". It may very well be that we should distinguish between cohabitation and a family with marriage and with children.
I also share the difficulties of the noble Lord, Lord Ennals, as to how the noble Lady's amendments will

793
be enforced. Will women patients be required to present themselves at clinics for treatment carrying their marriage lines? Will a Woolworth's ring serve, as it did for lay workers like myself at local Family Planning Association clinics in the 1950s which would only give contraceptive advice to the married? Would not such inquisitions be regarded by the married and unmarried alike as gross violations of the privacy of their intimate relations and lives? Those are interferences which in this country we have resolutely declined to make in the past.
The noble Lady's amendments make no provision for the inevitable hard cases which would arise. For example, a married couple who have been trying for a child for 12 years reach the point of going to a clinic for an embryo to be placed in the woman. Going up the clinic steps the husband slips and breaks his neck. What will happen then to that unmarried woman? As a widow she will be unmarried. If we are to enact such provisions we must take very much more elaborate arrangements for the difficulties than the amendments propose.
I respect and understand the reasons why the noble Lady, Lady Saltoun, has moved the amendments. However, I do not believe that they accord with prevalent attitudes towards women or to the family or sexual and reproductive behaviour. However we define morality in these areas, we shall never be able to enforce it by law. We may recall one of the more extreme examples of such an attempt. In Scotland in 1563 adultery was made an offence punishable by death. There is still dispute among Scots historians as to whether or not anyone was hanged.
There are multiple causes of single parenthood. The numbers that would be affected by the Bill are very small indeed. It is in no sense a Bill which justifies the description of the noble Lord, Lord Ashbourne, of a Bill bringing in fatherless children from all sides. We have a million and a half of them already. Many of us are extremely anxious about the consequences of the break-up of families upon divorce, a subject which was explored in lengthy discussion by noble Lords in a debate initiated by the noble Baroness, Lady Ewart-Biggs.
These are genuine problems. I do not suggest that they are not serious and genuine problems, but we cannot tackle them and should not attempt to tackle them through a Bill which, as the noble and learned Lord, Lord Hailsham, pointed out, is directed to a wholly different purpose. Let us tackle the problems in relevant ways, not in this kind of amendment.
9.15 p.m.
The Earl of Lauderdale: The noble Lord has invited us to tackle the Bill in relevant ways within seconds of telling us that there are a million and a half fatherless children in this country. If that is not relevant to the Bill, I do not know what is. He has told us, as has the noble Lord, Lord Ennals, that it is preposterous that we should try in a Bill to interfere with private judgment on private matters. But what do we do as legislators every day of the week?
Legislation is about human behaviour, like it or not. It is about imposing restraints on the one hand and releases on the other so that we can live together sensibly, humanely and in a civilised fashion. To say
794
that it is impossible in principle to legislate about private matters makes nonsense of our procedures from Monday to Thursday in this House. We discuss it all the time in one way or another, directly or indirectly, whether we are discussing crime, schooling, drugs or a million other subjects, even energy policy and the kind of cooker that one uses. The whole matter is always related to private decisions by private people. Surely the function of legislators is to put into a usable form the feelings and consensus of society as a whole.
That is where I find the amendment of the noble Lady, Lady Saltoun, relevant. The noble Lord, Lord McGregor of Durris, is always plausible. Alas, one cannot help but listen to him. I am spellbound every time he speaks. I wish that he did not do so because I am often nearly convinced. We are discussing all the time how human behaviour can be made compatible, if I may put it that way. It relates all the time to private decisions in the secrecy of our hearts. That is what we are about. Thus, to say that this or that aspect should not be considered in the Bill because it is private is absolute rubbish.
Baroness Ewart-Biggs: Perhaps I may briefly express my concerns about the amendments. The noble Lady, Lady Saltoun, quite rightly said that fathers are important. No one would disagree that fathers are of great importance to children. However, the noble Lady also said that it was wrong per se to bring children into single-parent families. Perhaps the noble Lady will explain later what she meant by that. I believe that it is no justification for her amendments.
Lady Saltoun of Abernethy: Perhaps I may explain at this stage what I meant. I think that it is wrong to bring children into single-parent families by artificial means. We all know that children often occur in single-parent families. That is in the nature of things, but I cannot believe that it is right deliberately to bring a child into a one-parent family by artificial and possible expensive means.
Baroness Ewart-Biggs: The noble Lady implies that a single-parent mother is under a disadvantage, but that is not acceptable.
As the debate on the family which I introduced some time ago has been mentioned, perhaps I could briefly reiterate the major force of what I said then. Although I too would always favour a nuclear family as the right setting in which to bring up children, today's facts and statistics mean that we must support the family in whatever structure. That was in the interests of the children. There was general agreement in that debate that this was the major priority today. While supporting the nuclear family we must also support the family as it exists. Research shows that many young people quite deliberately do not go through the formalities of a marriage but have a stable relationship. They themselves have perhaps come from divorced parents and suffered all the anguish that is certainly experienced by children of divorced parents.
I should like briefly to support the observations of my noble friend Lord Ennals. First, from the point of view of discrimination I believe that to restrict a

795
single woman from conceiving by any means that she chooses is clearly an overt form of discrimination on the basis of her marital status. My noble friend Lord Ennals spoke about the European Convention on Human Rights recognising and guaranteeing the rights of every individual to found a family and have his or her private and family life protected. That was based on the European convention. Perhaps the noble Lord who spoke critically of my noble friend on that point will agree that it is the European convention which lays down that particular right.
Another point is that the Pregnancy Advisory Service has said that it would not be prepared to operate a partial DI service. So why should some women be penalised for choosing to attend a safe and reliable clinic rather than face possible risks by either self-insemination or, indeed, casual sex? Surely, as the noble Lord said, the intention of the Bill is to provide a safe treatment service by a system of public regulation. These amendments would go right against that intention.
The amendments have caused great concern to many organisations. I am sure that many of us have heard about their anxieties. I certainly have received many letters. It has also been pointed out that many children have already been born by donor insemination. If this amendment were carried it would attach a retrospective stigma of criminality to the circumstances of their birth.
I find these amendments very worrying for the reasons that I have given and the reasons given by my noble friend and the noble Lord, Lord McGregor.
Lord Ashbourne: I apologise to the noble Baroness for having risen a little too speedily. I commend these amendments to the Committee. In my opinion they are both moderate and balanced. Personally, I would have preferred them to have gone further but I do not think that the Committee need have any worries in supporting them.
"There is a tide in the affairs of men,
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries".
If the Members of the Committee do not feel in their hearts able to support these amendments, I suspect that they may find that the voyage of life is indeed bound in shallows and miseries.
The Earl of Halsbury: Having failed to support the noble Lord, Lord Ashbourne, and the noble Earl, Lord Lauderdale, I thoroughly endorse the amendments of the noble Lady, Lady Saltoun.
We have to put up with situations that are less than ideal: broken marriages, couples living together, one of whom may be deserted by a lover who leaves her pregnant, children rendered fatherless by the death of the father and so on. However, we do not have to encourage such situations. The reason that I support the noble Lady is simply because I want to see the seal of parliamentary disapproval set upon the machinations of the permissive society, which has been a disaster for this country. For that reason, if the noble Lady chooses to divide the Committee, I shall follow her into the Division Lobby.
Lord Gisborough: I should like to support the amendment of the noble Lady, Lady Saltoun. I find it bizarre that artificial means should be suggested to encourage lesbian couples to have children. We are told of a group of single, mainly homosexual, men who are campaigning for the right to bring up a child. I find it beyond comprehension. It takes me back to the 1960s, when licence was given which, in my view, has done immense damage to this country. The question has been asked, how could such licence be controlled? If one wishes to adopt a child one has to go through a certain process of screening. A similar process could be adopted. There is always the family's own GP who is in a position to recommend that somebody either goes to hospital for the treatment or does not.
Finally, the cost to the NHS is soaring with all the new possibilities of treatment. To saddle it with this extra cost of treatment, as is suggested, for lesbians and single women is to my mind absolute nonsense.
Lord Robertson of Oakridge: I should like to comment on one point. It has been implied that people who underwent unauthorised treatment would be involved in criminality. But that is not what the Bill states. If the amendment were passed, the Bill would provide that a licence cannot authorise placing an embryo in an unmarried woman. On that basis it would be an offence to issue a licence authorising treatment which is banned by the Bill, or it would be an offence to carry out the treatment —that is, the placing of an embryo in an unmarried woman —without a licence, which would not be obtained. But the people undergoing the treatment would not be committing an offence.
I should like to support the amendment. Perhaps I may say that I was appalled at the view of marriage of the noble Lord Lord Ennals. If that is the message that we shall send out from this Chamber tonight, we shall strike a heavy blow against the family.
Lord Hylton: I have the greatest possible sympathy for the values and principles that have moved my noble friend and kinswoman to put forward the amendment. I entirely agree that it is highly desirable that all children should have two parents if that is at all possible. However, the weakness of the amendment is that it seems to discriminate against the infertile unmarried woman or couple because those who are fortunate enough to be fertile will simply go ahead in the normal way.
Lord Swinfen: I should like to support the amendment of the noble Lady, Lady Saltoun. I believe that there is one aspect that needs a little improvement. As we all know, there are couples who live together throughout their lives although unmarried for one reason or another. It does not matter what the reasons are. They are living together as a married couple. That would be a marriage that was made not by any formal ceremony on this earth but a marriage nonetheless, in my view, although not recognised by law. Surely it would be possible for couples in such a position to enter into a contract that they would live together and bring up their children as a family.

797
If such a contract were entered into then it would be possible to allow in vitro fertilisation for the woman who was unable to bear a child in any other way. For instance, it would cover the situation in which one of the partners had been married but for one reason or another was unable to obtain a divorce. They would be living together although not married in the name of the law. However, if they have entered into a contract to bring up the children as a family they should not be denied the right.
The noble Lord, Lord Ennals, gave as an example a couple who had been living together, had two children, were then married and had another child. That example was totally irrelevant; they did not need in vitro fertilisation because they had proved themselves in the normal and natural way. The noble Lord, Lord McGregor of Durris, gave as an example an unmarried couple who visited the surgery but the male partner tripped on the steps and fell down dead. Exactly the same thing would be happening at home if they were going up to bed and he fell down the stairs. It is a fallacious argument.
9.30 p.m.
Lord Ennals: Does the noble Lord agree that all the arguments he has put forward are arguments against the amendment?
Lord Swinfen: No.
Viscount Caldecote: The extraordinary aspect of the debate is that we all profess our keenness to help the stability of family life and marriages. Yet every time we debate an amendment that is intended to do so we shy away from it on the grounds that it is interference with individual liberty. That is a totally unconvincing argument, as my noble friend Lord Lauderdale has clearly put before us.
It is a nonsense and goes against experience to believe that giving everyone complete freedom to do exactly as they wish increases the strength of the family and human happiness. As we have seen in the cases of free and easy divorce and abortion, the pendulum swung too far in the direction of freedom. We are in grave danger of not making a contribution towards returning the pendulum to a more reasonable position when dealing with the Bill now before us.
It may be that the amendment put forward so eloquently by the noble Lady, Lady Saltoun, is not the best way of achieving the objective. However, can we not accept that the principle behind it is right? If there is a detailed way in which it can be improved in order to overcome the difficulties, we must find it. It is no good constantly putting forward difficulties. We must find a way of strengthening family life, which we all agree to be important. I support the noble Lady's amendment, but if there is a better way of achieving the principle we should try to find it.
Lord Hailsham of Saint Marylebone: I shall be only too glad to be corrected if I am wrong, but I believe that the noble Lord, Lord Robertson of Oakridge, ventured to say that there would not be a criminal offence if the amendment were passed and breached. Will my noble and learned friend read
798
carefully Clause 3(1) and Clause 36? I also wonder whether the noble Lord, who I do not believe has done so, would care to do the same.
Lord Robertson of Oakridge: I had done so. Clause 36 states:
"A person who contravenes section 3(2) or 4(1)(c) of this Act, or does anything which, by virtue of section 3(3) of this Act, cannot be authorised by a licence, is guilty of an offence".
If the amendment is passed that guilty person is not the one who undergoes treatment but the one who places the embryo in an unmarried woman.
Lord Hailsham of Saint Marylebone: Perhaps the noble Lord will read Clause 3(1) and no other, and then read it with Clause 36.
Lord Prys-Davies: Perhaps I may remind the Committee of a point made by the noble Lord, Lord Winstanley, in response to an earlier debate today. He made the very good point that the single woman who will seek treatment under the provisions of this Bill will have thought deeply over the issue before deciding to receive treatment. Under the Bill she will receive counselling and will have satisfied herself that she is adequately prepared for parenthood and all its implications. That point should not be overlooked.
Baroness Robson of Kiddington: She will not only have satisfied herself that she is ready for parenthood but she is also facing, in the case of Amendment No. 21, a most unpleasant experience. In vitro fertilisation is not a pleasurable experience. I know many women who have undergone the procedure, and I believe that any woman who is convinced enough to go through that will love her child.
Lord Kilbracken: There seems to be this extraordinary opinion that if a child is born to a married couple he will automatically be brought up in conditions of perfect stability and happiness. That is an absolute fantasy. Life is simply not like that at all. It was not like that for me in my childhood and, unfortunately, it was not like that for my children in their childhood. If it was suggested that couples must enter into a contract that the children should be brought up against a stable background, I wonder how many married parents would be prepared to sign a contract of that kind.
Baroness Elles: I just want to intervene on one aspect of this matter. The noble Lord, Lord Kilbracken, spoke about children not necessarily being happy in an ordinary family. Those of us who have done social work for many years, particularly dealing with one-parent families, will know of the enormous unhappiness and financial difficulties, desertion and isolation which women particularly feel, and even more so if they have children. You cannot equate happiness with being a member of a family and you certainly cannot equate it with a child being left with one single mother wherever it is in the United Kingdom, because one sees all too often the intense poverty, isolation and unhappiness of those people. I strongly support the amendment in order to discourage people from having children

799
if they do not at least have the family structure and financial support which they need in those circumstances.
Lord Houghton of Sowerby: I wonder whether Members of the Committee realise that the speeches we are hearing in favour of this amendment are going absolutely against what is now public policy in this country; that is, the policy of non-discrimination. It is that issue of principle which will be taken as the judgment for what Members of the Committee are asking us to do. We have the Equal Opportunities Commission to support a non-discrimination Act and to persuade all concerned in all circumstances that they must not take marital status into account.
That is public policy. I believe that it will be a grave mistake if Members of the Committee think that they can go against that without the Government having to reconsider their position in this regard because that will be extremely difficult to justify. It is not so much the argument as to whether people will do this or that or will treat their children better than others or whether the family is the circle best calculated to produce the young people we want. What is at stake here is the gesture, the conflict with principle which women have fought for a generation to establish. Those women say, "Our marital status is our business. We will not have it quoted for us or against us. We will choose our way within the law and the law does not forbid us from producing families if we are not married. The law does not interfere". The law permits the NHS to produce for a woman who already has three children the fertility drug and she then produces another seven. That is permitted under our Naional Health Service on the ground that we must not dictate to people what they shall do in that particular aspect of private life.
That is the situation we have here, I am afraid. It is very late at night and we might run away with our emotional response to this situation, but I beg the Committee to consider whether it would be wise to go against public policy in this serious matter tonight.
The Lord Chancellor: We have had a very important debate on an extremely difficult subject. I shall seek first of all to deal with the effect of the amendment on Clause 3. It would deny unmarried women access to in vitro fertilisation treatment. The amendments to Clause 4 would prevent them from receiving donor insemination from licensed treatment centres.
I have looked carefully at the question raised by my noble and learned friend Lord Hailsham and the noble Lord, Lord Robertson of Oakridge. I think the practical answer is that if the amendment of the noble Lady, Lady Saltoun, is agreed to, it would not be possible to grant a licence to authorise in vitro fertilisation for people who are not married. The person providing the treatment, if the amendment were to be passed, would commit the offence of doing something which could not be authorised by a licence under Clause 36(1)(b). However, the person receiving the treatment would probably not be committing an offence. That is the advice I have
800
received and it is my own reading of the provisions. Obviously it is subject to fuller consideration if there is any question about it.
The second general matter that I should mention is my understanding of the European convention in relation to human rights and fundamental freedoms. Article 12 of the convention provides that men and women of marriageable age have a right to marry and found a family according to national laws. The advice I have received is that, if the amendments of the noble Lady, Lady Saltoun, were passed, these would not prevent women from marrying, obviously, and therefore the relevant article of the convention would not be breached.
The matters which have been raised are certainly difficult. It is plain that the principles underlying the amendment are of widespread application and are attracting a great deal of support. I speak for the Government in saying that I share the desire of the noble Lady, Lady Saltoun, that the sanctity of the family unit should not be lost sight of in the wish to help childless couples have the children they can so fervently desire.
It is important to keep the issue in perspective. The number of patients receiving the treatments to be licensed by the Bill is very small when compared with the number of births. Within that small number experience suggests that the proportion of children born to unmarried women is tiny. Moreover, one has to consider, as has been pointed out, the situation with regard to natural methods of procreation.
I intend now to mention some of the issues which will need to be considered before reaching a view on these amendments. It is certainly very difficult to decide whether it is right that the law should specify that the treatments to be licensed under the Bill should be confined to married couples. The availability of infertility treatments to particular patients is normally a matter for individual clinical decision by the doctor, by the person who wishes to obtain the treatments and by the partner, if one is involved.
In the case of artificial insemination by donor, in practice there would be some difficulty about prohibiting the artificial insemination of an unmarried woman. The technique is straightforward. I understand that self-insemination can be readily achieved without clinical assistance. I gather that advice in this connection is easily available, but concern as regards the risk of contracting HIV from unscreened donors in recent years has resulted in more would-be single mothers turning to clinically supervised sperm banks.
However, it would clearly be unfortunate if this Bill was seen in any way to be conflicting with the importance we attach to family values. As the Bill stands, apart from these amendments, the authority has to prepare a code of practice which Ministers will approve before publication. It will need to give general guidance to clinics on this sensitive aspect of their work. In particular, we would expect the code of practice to highlight the importance of the welfare situation of any child to be born as a result of the treatments. Attention has already been directed to the requirement of counselling concerning these treatments.

801
It is important that counselling should take account of the aspects of welfare of any child to be born as a result of the union or the treatments. There may be situations in which a person would not at first sight be willing to accede to the principle of these amendments. Yet on fuller consideration of the issues, if the person came to the clinic and received counselling, that person might see that, after all, the principle was a good one and should be given effect to. One must not leave out of account the possible effect of counselling on the attitude of the person concerned as regards the possible result of treatments.
The idea of highlighting the aspect of the possible child's welfare would be entirely in line with the policy that lies behind the legislation on children, including the Children Act of last year, which has already been referred to and which started its parliamentary course in your Lordships' House. The issues raised by these amendments are complex and touch on personal values and opinions which I feel sure each of us holds dear.
In effect it is an issue of conscience. It is on that basis that I urge the Committee to make up its own mind on this matter. In reaching a decision it is clearly important that full account is taken of the future welfare of any child.
9.45 p.m.
Lady Saltoun of Abernethy: We have had a very interesting and far-reaching debate on these amendments. I am most grateful to all Members of the Committee who have taken part and put their views, whether or not they agreed with me. Many of them did not. Perhaps I may comment on one or two of the views expressed. I am sure that the young mother referred to by the noble Lord, Lord Ennals, was a good mother. I did say that many single women were good mothers. But she could not offer the child the inestimable benefit of a father's loving care.
All the arguments I have heard against my amendments put the interests of the woman concerned before those of the child. I say to the noble Lord, Lord McGregor of Durris, that I do not think that the number of women affected is relevant. Neither is it relevant that the number of cohabiting couples increased by a multiple of three between 1979 and 1987. It might interest some noble Lords to know that in the old days in country districts in the part of Scotland where I live, it was the custom for a man to live with a girl for a year. If at the end of the year she was pregnant he had to marry her. If she was not, they could part. Nobody minded. It was quite all right. In those days, when there was no welfare state and no old age pension, one of the objects of marrying was to have children to provide support and care in one's old age. That was a sensible arrangement.
I am not really interested in morality, in the rights of women to have children, or in prevalent sexual mores. I am concerned with the best interests of the children. As the noble Earl, Lord Lauderdale, said, legislation is a question of balancing various
802
interests. It is a question of compromise between private interests and society's interests, which in this case I think means the children's interests.
I entirely agree with the noble Baroness, Lady Ewart-Biggs, that we should support the family as it is, but I do not think that we should necessarily always assist it to become as it is. I was surprised to hear of the number of letters she says she has received from various organisations. Most of those organisations are not exactly slow to write to the tabler of an amendment with which they do not agree. I have not had one single angry letter, or not angry letter, from any organisation about my amendments since they were tabled, which was quite a long time ago.
The noble Lord, Lord Swinfen, made an important point about common law marriages. I accept that it is one which needs to be addressed. To the noble Baroness, Lady Robson of Kiddington, I want to say that I do know what in vitro fertilisation involves. I have watched the whole process at the Cromwell Hospital and at Simpson's Memorial Pavilion in Edinburgh. But AID is a simple process which can easily be done at home on a do-it-yourself basis. There is no way to prevent do-it-yourself AID.
I was grateful to the noble and learned Lord the Lord Chancellor for clarifying the point made by the noble Lord, Lord Ennals, about the European Convention on Human Rights. At the end of it all, I come back to the fact that there is here a serious conflict of interest between the woman and the potential child. In view of the fact that the noble and learned Lord the Lord Chancellor has suggested that in this instance the Committee will have to make up its own mind, I have decided to ask the Committee to do precisely that.
9.55 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 61.

DIVISION NO. 1

CONTENTS

Abinger, L.

Home of the Hirsel, L.

Ashbourne, L.

Hunt of Tanworth, L.

Belhaven and Stenton, L.

Iddesleigh, E.

Blatch, B.

Jenkin of Roding, L.

Boardman, L.

Joseph, L.

Braye, B.

Kinloss, Ly.

Brentford, V.

Lauderdale, E.

Brightman, L.

Liverpool, E.

Caldecote, V.

Long, V.

Cocks of Hartcliffe, L.

Luke, L.

Coleraine, L.

Macaulay of Bragar, L.

Cork and Orrery, E.

Margadale, L.

De L'Isle, V.

Melville, V.

Eden of Winton, L.

Monk Bretton, L.

Elles, B.

Morris, L.

Ferrers, E.

Mountevans, L.

Fitt, L.

Norfolk, D.

Gisborough, L.

Oxford and Asquith, E.

Glenarthur, L.

Peel, E.

Grantchester, L.

Perth, E.

Haig, E.

Reading, M.

Halsbury, E.[Teller.]

Reay, L.

Harvington, L.

Renton, L.

Hives, L.

Robertson of Oakridge, L.

803

Romney, E.

Stallard, L.

St. Albans, Bp.

Stodart of Leaston, L.

Salisbury, M.

Strange, B.

Saltoun of Abernethy, Ly.

Strathmore and Kinghorne,

[Teller.]

E.

Sanderson of Bowden, L.

Swinfen, L.

Sidmouth, V.

Ullswater, V.

NOT-CONTENTS

Addington, L.

Downshire, M.

Adrian, L.

Elliot of Harwood, B.

Ampthill, L.

Ennals, L.

Barnett, L.

Ewart-Biggs, B.

Borthwick, L.

Faithfull, B.

Brain, L.

Falkland, V.

Butterworth, L.

Graham of Edmonton, L.

Carnegy of Lour, B.

Grey, E.

Craigavon, V.

Hacking, L.

Darcy (de Knayth), B.

Hailsham of Saint

David, B.

Marylebone, L.

Denham, L.

Harmar-Nicholls, L.

804

Hatch of Lusby, L.

Pitt of Hampstead, L.

Henderson of Brompton, L

Prys-Davies, L.

Houghton of Sowerby, L.

Rea, L.

Hylton, L.

Richardson, L.

Jellicoe, E.

Robson of Kiddington, B.

Kagan, L.

Seear, B.

Kilbracken, L.

Sherfield, L.

Lawrence, L.

Taylor of Blackburn, L.

Lindsey and Abingdon, E.

Thomas of Gwydir, L.

Llewelyn-Davies of Hastoe,

Turner of Camden, B.

B.[Teller.]

Tweeddale, M.

Lockwood, B.

Walpole, L.

McGregor of Durris, L.

Walton of Detchant, L.

[Teller.]

Warnock, B.

McIntosh of Haringey, L.

Westbury, L.

Mackie of Benshie, L.

White, B.

Monson, L.

Winchilsea and Nottingham,

Mowbray and Stourton, L.

E.

Nicol, B.

Winstanley, L.

Pender, L.

Wynford, L.

Petre, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.3 p.m.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 22:
Page 2, line 23, at end insert —
("or

(e) keeping or using an embryo obtained by lavage.").

The noble Duke said: Some Members of the Committee will be aware that where there is normal sexual intercourse the embryo is in the womb and is engaged in attaching itself to the side of the womb. It is what medical scientists call nidation. We, Pro-Life Group, feel that that is a course of nature, the beginning of human life, and that the baby will eventually fructify in the womb and be born. To wash it out, or lavage, is a bad thing to do. It was done before in vitro fertilisation existed. It is now unnecessary to do it and it should be forbidden. I beg to move.
Lord Walton of Detchant: This technique of lavage is one which is of great relevance to research in relation to pre-implantation diagnosis. If this amendment were to be agreed it would pre-empt a substantial part of the discussion that we may be having on Clause 11 of the Bill on Thursday. The point of relevance is that if research is to be approved under this Bill when Clause 11 is debated, there will be two techniques that may be possible for studying pre-implantation diagnosis of genetic disease.
The first technique will be to undertake in vitro fertilisation to allow the embryo, or conceptus, to develop to the eight or 16-cell stage and then to carry out a procedure (which will be discussed on Thursday) to identify whether a defective gene is present. One alternative method that is used in certain centres is to allow the normal course of intercourse to take place, for fertilisation to begin within the woman's uterus and at that stage, within about five days, the blastocyst or conceptus is floating free in the uterus and has not yet begun to implant.
Of those blastocysts which are formed by the process of normal intercourse, some 80 per cent. are shed in the course of normal human reproduction. The purpose here is to be able to wash out those blastocysts at three, four or five days after intercourse and to carry out the same kind of studies relating to pre-implantation diagnosis. If this amendment were to be passed, I think it would prejudice our discussion on research on Thursday.
The Lord Chancellor: This amendment refers to a technique used in some countries for the treatment of infertility whereby embryros are flushed from a woman's body before they implant in the uterus for subsequent use usually in relation to the technique of embryo donation. Although it is not at present used in this country, it is possible that in the future clinicians may find it helpful in some cases. It would seem therefore not right to accept this amendment which would have the effect of prohibiting it
806
altogether. Nowhere else in the Bill is a particular kind of clinical treatment prohibited, and indeed if lavage were to be used in this country it would be subject to the licensing provisions in the Bill because it would involve subsequent storage and use of the embryo.
Therefore, I should like to suggest to the noble Duke, the Duke of Norfolk, that the right way to deal with this matter is as part of the fundamental question that is to be discussed in relation to Clause 11. I think that that is in accord with the advice that the noble Lord, Lord Walton of Detchant, gave a moment ago. This is just one possible technique that might be used. It seems not right to single it out to prohibit it altogether. The right thing to do is to leave the whole matter to be discussed in principle and the consequence of the principle will affect every form of clinical treatment that might be used to further the result.
The Duke of Norfolk: I much respect what the noble and learned Lord has said, and I fully agree that, once this embryo is created in the uterus and is not yet attached to the womb —nidation, or whatever it is called —nature flushes a lot more out of the womb, and we think that perhaps those should be the ones that are used for tests. We think that it is unfortunate to take a human life that is beginning and remove it from the uterus to inspect it and maybe to experiment on it. However, I agree with the noble and learned Lord that we are awaiting the arrival of Clause 11. I should prefer to return to this subject on Report, if necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 and 24 not moved.]
Clause 3 agreed to.
Clause 4 [Prohibitions in connection with gametes]:
[Amendments Nos. 25 and 26 not moved.]
The Earl of Perth The Earl of Perth moved Amendment No. 27:
Page 2, line 33, leave out from ("woman") to end of line 34.
The noble Earl said: In moving this amendment I wish to speak to Amendments Nos. 32, 61 and 69. I also wish to speak to Amendment No. 31, which stands in the name of the noble Lord, Lord Kilbracken. I shall speak to all those amendments, as they are either consequential or closely related. Amendment No. 31 seeks to amend Clause 4. Clause 4(1)(c) states that no person shall:
"mix gametes with the live gametes of another species of animal, except in pursuance of a licence".
Some Members of the Committee —I must confess I was one of them —did not fully appreciate the meaning of that clause. However, it becomes crystal clear when one looks at paragraph 3(4) of Schedule 2, which lists what may or may not be done under licence. I must quote that list as it is the heart of everything, if I may put it that way. It states:

807
"A licence under this paragraph may authorise fertilisation by mixing human sperm with the egg of another species of animal for the purpose of developing more effective techniques for determining the fertility of human sperm if the resulting embryo is immediately destroyed".
In brief it allows the creation of an embryo, a living thing, which is half human and half animal, even if it may be immediately destroyed. To me such a practice is wholly wrong. We must not allow it. Therefore my amendment seeks to remove the offending lines from the Bill.
As I said on Second Reading, I believe the medical profession has lost its way in using this test, known as the hamster test, for the purpose of fertility. I am sad to say this but I think that the Government have followed the medical profession in this respect. I shall explain what I understand happens in the hamster test. Some 40 eggs of the hamster are taken and mixed with human sperm. After a period of time, say three hours or so, a judgment is made on the percentage of eggs which are fertile and which have been penetrated by the human sperm. On that basis, if the eggs are living at that moment, a judgment is made as to the fertility that has been achieved. It is not always reliable but sometimes it works. The results have to be destroyed immediately, but they have been created. For me and for many others to whom I have spoken that is wholly shocking and wholly repellent.
In relation to an earlier amendment, the noble Earl, Lord Halsbury, referred to the fact that the hamster was unique in its properties and that that would not happen in other cases. We do not know that for certain, particularly with the advance of science. I must point out to the Committee that the clause does not relate only to hamsters. It allows the eggs of other animals to be impregnated with human sperm. That opens the door, horrifically, to I know not what.
I stress that the amendment does not in any way affect the broad principles with which the Committee has been deeply concerned, the experimentation on human embryos which is covered by Clause 11. That is quite separate and the amendment in no way prejudices Clause 11. That being the case, and having heard what I have said, I very much hope that the Committee will feel able to support me. The issue is stark and clear. There is no halfway house, although I appreciate that the noble Lord, Lord Walton, tries to provide one in the following amendment.
The issue is simple. The creation of embryos which are half human and half animal is unnatural and, I believe, against God. It must not be allowed, now or ever. I hope very much that the Government will feel able to accept the amendment. I beg to move.
10.15 p.m.
The Earl of Halsbury: In the context of the amendment I wish to correct a mistake that I made in connection with the amendment of the noble Baroness, Lady Elles. I said that the hamster egg was unique in its penetrability. It is not its penetrability; it is the removability of its zona pellucida. It does not have a zona. It is sometimes known as a zona free egg.
Lord Kilbracken: Quite independently of the noble Earl and the noble Duke I reached the conclusion that it was completely wrong that the gametes of humans and animals should be mixed under any circumstances under licence. I too, therefore, put down an identical amendment to Amendment No. 27 and proposed instead the prohibition set out in Amendment No. 31, which, in the case of the noble Earl and the noble Duke, is contained in Amendment No. 32.
The noble Earl has already argued the case so strongly that I do not feel that it is necessary for me to add to it except to say that I believe that it is unthinkable that the mixture of the gametes of humans and animals should be permitted under any circumstances.
Lord Home of the Hirsel: I support the principle of the Bill and had not intended to speak at this stage. However, like my noble friend Lord Perth I have been greatly concerned by the proposition that it should be legal in the future to create hybrid embryos produced by the sperm of a man fertilising the egg of a female animal. The noble Earl would like to put a stop to such practices now.
I hope that I have had some comfort from the noble Earl, Lord Halsbury, who suggested that a hamster is the only animal which could in practice be used for such experiments, but I am not now so sure that I got that right. I still find the fact of the use of hamsters repugnant. There must be other and better ways of testing the fertility of an individual donor.
I would rather that my noble friend did not divide the Committee this evening if he feels that he can avoid doing so because we are about to hear, first, my noble and learned friend the Lord Chancellor and, secondly, in a fuller Chamber perhaps, a number of noble Lords who have medical knowledge. I shall look forward to hearing their views. Nevertheless, if my noble friend decides to divide the Committee I shall go with him. I hope that there are better ways of doing what the amendment proposes. The practice must be stopped, if not now, in a very short time.
Lord Walton of Detchant: I rise to oppose the amendment proposed by the noble Earl and to offer an alternative amendment, Amendment No. 70, which I have tabled, as I believe that the issue has been clouded by considerable misunderstanding and by a number of serious misconceptions.
The crucial issue is that no embryo is formed by the mixing of the gametes. As is specified in Clause 4(1)(c), no person shall,
"mix gametes with the live gametes of another species of animal, except in pursuance of a licence".
The intention of the clause is to ban the creation of chimeras or hybrids which might in theory, and in theory only, result from cross-fertilisation between gametes of humans on the one hand and animals on the other. I can assure the noble Earl and those who support his amendment that any such prospect would be abhorrent to all responsible scientists.

809
However, the purpose underlying Schedule 2(4), as I trust that my alternative amendment makes clear, is simply to allow scientists to continue to utilise the zona free hamster oocyte penetration test, a simple laboratory procedure which provides important information on the fertilising capacity of human sperms. The test was introduced in the United States in 1976 and has subsequently gained worldwide acceptance as a diagnostic procedure in clinical studies of male fertility. The World Health Organisation warmly commends that standard test which assesses the fertility of human sperms with greater accuracy than any of the more conventional methods. Such studies are urgently required because, although defective sperm function is recognised as the largest defined cause of human infertility, there are few, if any, effective treatments which can correct it at the present time. Without that test, and the improved techniques that are likely to stem from it, clinical research workers will be unable to make any major progress towards the treatment of a condition which affects about one in 16 of the male population.
The test also plays a key role in developing male contraceptive agents, including vaccines, which are now being developed for use. If the test were no longer available, the only alternative method of assessing the fertility of male subjects now participating in clinical trials under the auspices of the World Health Organisation would be for them to have unprotected intercourse with their partners. It is surely preferable to test the efficacy of a male contraceptive agent by using the hamster test rather than to expose couples engaged in the trials to the risk of an unwanted pregnancy. However, there is also growing evidence that research workers are helped by the test to study more effectively than any other technique allows the chromosomal constitution of human sperms. That enables them to study the male contribution to genetic abnormalities in the human embryo and the influence of environmental factors such as radiation.
Here I must confess that there is an important omission in my amendment, which suggests that the test should be used solely for assessment of human fertility. I should have added, "and for assessing the normality of sperms". The test itself simply involves the incubation of human sperms with hamster eggs which have been treated with an enzyme to remove an outer shell or capsule called the zona pellucida. After three hours of incubation the eggs are removed and inspected to see whether the sperm has penetrated the egg. Once that microscopic assessment has been made the cells are easily destroyed by compressing them on a microscopic slide. Indeed that procedure is an essential component of the test itself. In other words, destruction of any such cells shown to have two nuclei, one from the sperm and one from the egg, without fusion is an integral component of the test as well as being an inevitable consequence of its being carried out.
Finally, I would add that there is no prospect whatever of true hybridisation between the human and hamster cells or indeed with the cells derived from any other animal likely to be used for that purpose. Nor is there any prospect at all of forming
810
a viable embryo: first because the genetic situation of human and such animal cells is completely incompatible; secondly, because the incubation period is far too brief; and, thirdly, because even if the period of incubation were extended, the eggs which have been penetrated by sperm will degenerate spontaneously as they have no developmental potential whatever.
Thus, in opposing the amendment proposed by the noble Earl, I should like to suggest the alternative amendment that I have tabled and trust that it will be preferred by the Committee.
Lord Rea: Perhaps the noble and learned Lord the Lord Chancellor will put me right. As I read it, if Clause 4(1)(c) were removed, as is called for in this amendment, it would put the mixing of gametes with the live gametes of another species of animal totally outside the control of the licensing authority. In fact it would remove it altogether from the control of this Bill and make it freely available.
Earl Jellicoe: I understand very well the instinctive repugnance expressed by the noble Earl, Lord Perth, and my noble friend Lord Home in this matter. I heard what the noble Earl, Lord Perth, said; namely, that this does not prejudge our decision if we take one, as I hope that we shall, in two days' time on Clause 11. However, in fact it does prejudge it in a rather important way. As the noble Lord, Lord Walton, said, it affects important research in three major areas. One is the study, alleviation and detection of male infertility, which I believe the noble Lord said affects one in 16 of fellow males. Secondly, it affects the development of male contraceptive agents which are under study at the present time. Thirdly, it will stop the study of the chromosomal constitution of sperm and thereby the investigation of the contribution that we mere males make to abnormalities in the human embryo. Those are three extremely important areas of research.
For those reasons and for the other reasons given by the noble Lord, Lord Walton, who has such experience and knowledge, although I sympathise with the instinctive repugnance expressed by the noble Earl, Lord Perth, I very much hope that we do not pursue this amendment and prefer the amendment, perhaps amended again, which the noble Lord, Lord Walton, has in mind.
10.30 p.m.
Viscount Caldecote: I hesitate very much before crossing swords with the noble Lord, Lord Walton, who is a great expert in this field. However, the mixing of human and animal gametes is repugnant to us all in principle. The argument put forward is simply that the ends justify the means. To my mind that is a bad argument. It may be only a micro-step on a slippery slope. But that slope is very steep. I do not think that it is a slope. We are on the edge of a precipice into a very frightening abyss.
I understand from another expert that if we pass the amendment it would only cause inconvenience in some of the ways that have been explained to us tonight. I very much support the amendment.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): It is clear that the developments in human fertilisation and embryology that are the subject of this Bill offer the prospect of increasing human happiness, but they also raise some horrifying spectres. One of the most alarming notions that is raised by this group of amendments is the mixing of human and animal gametes to create some kind of hybrid. It is right that the Bill should proscribe such a practice in the strongest possible terms.
It is the Government's view that the Bill does that. It forbids placing any live gametes other than human gametes in a woman. That I think was the purport of the first amendment discussed this afternoon. It prohibits the placing of a human embryo in any other species of animal; and, in general, it prohibits the mixing of human gametes with those of any other species of animal. However, this last prohibition permits of one exception which may appear to weaken the general proscription on mixing species. The purpose of these amendments is to remove that exception.
As the noble Earl explained in proposing his amendment, the exception which the Bill as presently drafted would allow is a test which doctors have used for some time to determine the fertility of human sperm. I understood the hamster test to be the only way of carrying out this process, but I recognise that the noble Lord, Lord Walton, has added another possibility. I should add that this exception which the Bill provides was clearly mentioned in the White Paper. It is, I understand, extremely unlikely that any resultant embryo could develop beyond two cells, but the important safeguard is that the Bill provides that in any case such an embryo must be destroyed immediately.
While I can fully understand why the test may seem objectionable, even bizarre, to many Members of the Committee, with the science fiction connotations of creating strange hybrids, I believe that I can reassure the Committee that the test is a useful one clinically for which no real alternative exists. It is clearly right that this unique test should be permissible and it is important that the techniques should be looked at to see whether it can be improved in any way.
I recognise the strong feelings that have been voiced in relation to these amendments. But I trust that the proposers of the amendments recognise the importance of the exception, and the ultimate safeguard: that any result of the process must be destroyed immediately.
The Earl of Perth: I am not at all happy. I heard the comments of the noble Lord, Lord Walton, who is far more knowledgeable. He asked that his amendment be pursued and not those which I and other Members have tabled. He did so on the basis that the hamster test has greater accuracy than others. That is no argument for what I and many others believe to be shocking; namely, the mixing of human sperm with that of another animal, thereby creating another living thing. It is no good to say that the embryo will not live. The words are contained in
812
the clause, "if the resulting embryo". Therefore, there is a mistake.
The noble Lord, Lord Walton, spoke of chromosomal changes and the importance in research. That is one of my worries. I understand that medical science and the profession are making enormous steps and it is not so fantastic to imagine that over the years they will be able to change the chromosomes. Then all kinds of doors will be open. The noble Earl, Lord Jellicoe, talked about the provision hampering research. Perhaps it will hamper research but I am not afraid of that. The noble Baroness, Lady Hooper, said that it is clearly right. I am sorry but, as was said by the noble Viscount, Lord Caldecote, it is clearly morally wrong.
I was most worried by the point made by my noble friend Lord Home. He said that he wished for a fuller Chamber and more ability to hear the medical arguments. I respect that but I do not believe that the matter is purely medical. It is a question of what is basically right or wrong. I believe that during the past 15 years the medical profession has gone astray. I am perfectly sure in my mind, and I have spoken to various scientists who are of the same opinion, that if it were not allowed there is no doubt that with today's skills other methods would be improved to a point where this was no longer necessary — —
Lord Home of the Hirsel: I had exactly the same hope as the noble Earl; that medical opinion would convince us that there were alternatives which could be used and therefore there would be no need to proceed with the hamster test.
The Earl of Perth: I agree and we have heard from the eminent noble Lord, Lord Walton, that there are other methods. I am reluctant to do so but believe that I must test the opinion of the Committee. I beg to move.
10.38 p.m.
On Question, Whether the said amendment (No. 27) shall be agreed to?
Their Lordships divided: Contents, 36; Not-Contents, 61.

DIVISION NO. 2

CONTENTS

Ashbourne, L.

Kinloss, Ly.

Belhaven and Stenton, L.

Lauderdale, E.

Brentford, V.

Lindsey and Abingdon, E.

Caldecote, V.[Teller.]

Liverpool, E.

Cork and Orrery, E.

Morris, L.

Craigmyle, L.

Norfolk, D.

De L'Isle, V.

Oxford and Asquith, E.

Downshire, M.

Parmoor, L.

Eden of Winton, L.

Peel, E.

Elles, B.

Perth, E. [Teller.]

Elliot of Harwood, B.

Petre, L.

Gisborough, L.

Pitt of Hampstead, L.

Grantchester, L.

Renton, L.

Harvington, L.

Robertson of Oakridge, L.

Home of the Hirsel, L.

Ryder of Warsaw, B.

Hunt of Tanworth, L.

Sidmouth, V.

Iddesleigh, E.

Strange, B.

Kilbracken, L.

Swinfen, L.

813

NOT-CONTENTS

Addington, L.

Llewelyn-Davies of Hastoe,

Adrian, L.

B.

Ampthill, L.

Lockwood, B.

Belstead, L.

Long, V.

Borthwick, L.

McGregor of Durris, L.

Brain, L.

Mackay of Clashfern, L.

Brightman, L.

Mackie of Benshie, L.

Butterworth, L.

Monson, L.

Carnegy of Lour, B.

Mountevans, L.

Cocks of Hartcliffe, L.

Pender, L.

Craigavon, V.

Ponsonby of Shulbrede, L.

Darcy (de Knayth), B.

Prys-Davies, L.

David, B.

Rea, L.

Denham, L. [Teller.]

Reay, L.[Teller.]

Ennals, L.

Robson of Kiddington, B.

Faithfull, B.

Romney, E.

Ferrers, E.

Saltoun of Abernethy, Ly.

Fraser of Carmyllie, L.

Seear, B.

Glenarthur, L.

Sherfield, L.

Graham of Edmonton, L.

Somerset, D.

Hacking, L.

Strathmore and Kinghorne,

Halsbury, E.

E.

Harmar-Nicholls, L.

Taylor of Blackburn, L.

Hatch of Lusby, L.

Thomas of Gwydir, L.

Henderson of Brompton, L.

Turner of Camden, B.

Henley, L.

Walpole, L.

Hooper, B.

Walton of Detchant, L.

Houghton of Sowerby, L.

Warnock, B.

Jellicoe, E.

Westbury, L.

Jenkin of Roding, L.

White, B.

Kagan, L.

Wynford, L.

Lawrence, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.46 p.m.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 28:
Page 2, line 34, at end insert ("; or
(d) extract from the ovary of a woman an oocyte for the purpose of replacement elsewhere and fertilisation in vivo,").
The noble Earl said: In moving this amendment I am glad to be joined by my noble friend Lord Walton, who knows a great deal more about this subject than I do. The process described is known by the acronym GIFT—gamete intra-fallopian transfer—and is referred to rather briefly in the Warnock Report. It is an alternative to IVF which is favoured in certain cases.
The position is that the scientific establishments would like GIFT to come under the provisions of the Bill but the national health establishment thinks it will involve too much in the way of administration. I therefore commend the amendment to the Committee and make way for my noble friend, who is a great deal more knowledgeable on these matters than I am. I beg to move.
Lord Walton of Detchant: I apologise to the Committee for speaking again but the purpose of this amendment, which I warmly support, tabled by my noble friend Lord Halsbury is to ensure that the technique called gamete intra-fallopian transfer, or GIFT, is not exempted from the requirement to be licensed. GIFT does not at present require such a licence from the Interim Licensing Authority and the number of centres offering the treatment is increasing. The most recent figures available reveal that there are 32 centres in the UK offering GIFT alone and 33 offering GIFT and in vitro fertilisation—IVF.
814
Whereas the usual technique of IVF is, for instance, appropriate in those women who are infertile because of blockage of the fallopian tubes so that the eggs released from the ovaries cannot reach the body of the uterus to be fertilised by the incoming sperm, GIFT is an appropriate technique to be used in the case of those infertile couples where the ova can travel along the fallopian tubes to reach the uterus but where the sperms, for reasons often related to the chemical composition of the mucus plug in the cervix are prevented from reaching the eggs within the body of the uterus.
The GIFT technique involves obtaining a sample of the husband's sperm and obtaining eggs from the female subject using an ultrasonic imaging technique. The sample of sperm and the eggs are then injected together into a fallopian tube so that fertilisation takes place in a normal and natural environment. The technique is significantly less complex and at present in percentage terms more successful in skilled hands than IVF, but it nevertheless requires special expertise and facilities. Like IVF, it can result in a considerable number of multiple pregnancies. Concern has been expressed by the chairman and members of the Interim Licensing Authority that, especially in the private sector, centres without the appropriate medical and scientific skills may begin to offer this form of treatment. For example, they may transfer an excessive number of fertilised eggs in the hope of increasing their success rate, but with the unfortunate consequences of producing an unacceptable number of multiple pregnancies.
I share that view and in supporting the amendment I trust that the Committee will also accept it in order that the centres offering the GIFT technique of treatment as well as those offering IVF, will require a licence.
Lord Jenkin of Roding: I intervene only to support the amendment for the reasons given and to which I could not possibly add. If there is one Member of the Committee who is taking part in these debates and who has no need to apologise for speaking frequently, it is the noble Lord, Lord Walton. We listen to him with the utmost respect. We are deeply obliged to him for the guidance that he gives us on these recondite medical matters.
Baroness Hooper: The Government believe that it is not appropriate that this treatment, known as gamete intra-fallopian transfer or GIFT, should, as such, be regulated by the Bill. In considering which treatments to regulate, the Government applied two general tests. The first was whether treatments involved the creation of a human embryo outside the body. The second was whether, in other cases, the treatment involved donated or stored gametes or embryos. In each case, the process raises important questions like disposal, consent and legal status, which need to be addressed as they have many legal consequences. It is for this reason that the four treatments to be regulated by the Bill need statutory control.

815
Thus, where GIFT involves the storage or donation of any gametes used in the technique, it will be subject to the licensing provision of the Bill because it falls within the general tests I have described. But because the embryo does not leave the woman's body and no stored or donated gametes are involved, in other cases, GIFT does not fall within these general tests and so is not covered by the Bill. The Government do not believe that it would be appropriate to extend these necessarily stringent licensing conditions to treatments unless they satisfy one or both of these general tests to which I have referred.
The Government believe that GIFT as such should not be regulated by the Bill but its use should, like other treatments, be a matter for the clinical judgment of the doctor concerned as in the case of other kinds of treatment. Therefore, we do not feel able to accept the amendment. While thanking the noble Lords who proposed it in such a knowledgeable way, I hope that nonetheless they will understand the Government's reasons for being unable to accept the amendment.
Baroness White: Can the Minister explain what the Government propose to do about these very difficult multiple pregnancies which cause a great deal of distress?
Baroness Hooper: I believe that comes within the clinical judgment of the doctor concerned, to which I referred before and which is applicable to many other forms of treatment as well.
Lord Walton of Detchant: I am disappointed by this response because of the concerns that I expressed, which I know are shared by the chairman of the Interim Licensing Authority, and because of the belief that unless some kind of statutory control is imposed on the development and extension of this GIFT technique in the growing private sector, there is a serious risk that, even with the kind of clinical judgments —which are issues being considered by members of my profession —to which the noble Baroness has referred, there may be significant problems arising in the future.
I would ask that this issue be considered, even without it being included in the Bill as an amendment as we proposed, which I confess I should have preferred, with a view, by regulation, to bringing this GIFT procedure within the ambit of the statutory licensing authority. It may not be possible but I confess to being disappointed by the Government's response.
Baroness White: Could it not be reconsidered on Report?
Lord Walton of Detchant: I hope that it can be reconsidered at Report stage.
Earl Jellicoe: I apologise to the noble Baroness but I found what the noble Lord, Lord Walton, had to say on this subject extremely persuasive. I have not been altogether persuaded by my noble friend's
816
reply. I add my voice to those I have heard expressing the hope that this will be considered by the Government again between now and Report stage.
Lord Ennals: I should like to add to the plea for the Government to give an assurance that they will consider the matter between now and Report stage. A powerful argument was put forward by the noble Lord, Lord Walton. I hope it will be responded to.
Baroness Faithfull.: I, too, support the amendment and hope that the noble Lord, Lord Walton, will withdraw it with a view to the matter coming up again at Report stage after discussions with the Government.
Baroness Hooper: We shall look at the amendment in the light of the arguments advanced by noble Lords. We shall look at it perhaps particularly in terms of the spirit of the amendment, as the noble Lord, Lord Walton, suggested, and no doubt we shall return to the subject at a future stage.
The Earl of Halsbury: I warned the Committee that the Establishment was against it. But having regard to the assurance given by the noble Baroness, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Lord Robertson of Oakridge Lord Robertson of Oakridge moved Amendment No. 30:
Page 2, line 35, at end insert —
("( ) A licence cannot authorise the use of—

(a) sperm of any one man; or

(b) eggs of any one woman,

in the course of the provision of treatment services for more than such number of women as the Secretary of State may by regulations specify.")
The noble Lord said: This amendment would enable the Secretary of State to limit the number of women who could receive treatment services using the sperm of any one man or the use of eggs of any one woman in treatment services. At present there is no restriction on how often a man can provide sperm for AID or a woman can provide eggs for donation; nor is that covered in the Bill. The intention of the amendment is to avoid the gametes of one individual anonymously donated being used to create many children. It therefore seeks to reduce the possibility of genetically related individuals either marrying or having sexual relations without knowledge of their common background. I beg to move.
Baroness Hooper: This amendment would allow the Secretary of State to limit the number of women who could be treated with the eggs of a particular woman or the sperm of a particular man. The Govenment argued in the White Paper that, while it was desirable to have limits on sperm donations, there would be significant practical difficulties in trying to enforce any such limit. Recovery of eggs for a woman is a less easy procedure than the obtaining of sperm. It is in the Government's view unnecessary to legislate on what is again essentially

817
a matter of clinical practice. Nevertheless we feel that it is a matter where it would be right for the authority to provide guidance on good practice and to monitor the situation. That is the safeguard we envisage.
11 p.m.
Lord Ennals: Perhaps I may say that in my view the noble Baroness has got the position absolutely right. It was only proper that the issue should be raised because there is some concern in this connection. However, I do not think that the Secretary of State should have such a power injected into the Bill at this stage. The responsibility must lie with the licensing authority and, obviously, guidelines would be the best way to deal with the matter. I am certain that members of the authority would not wish to see the kind of abuse, to which the noble Lord, Lord Robertson referred, take place.
Lord Robertson of Oakridge: I am grateful to the Minister and to the noble Lord, Lord Ennals, for the comments they have made. It is possible that we shall return to the matter on Report to see whether this provision should be built into authority's instructions, so to speak. However, with that consideration in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 and 32 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 33:
Page 2, line 36, leave out ("keeping") and insert ("storing").
The noble Baroness said: In moving this amendment I shall speak also to Amendment No. 34. As currently drafted, Clause 4(2) provides that, if regulations prohibit the keeping or use of gametes, a licence cannot authorise their keeping or use. Subsection (1)(a) prohibits the storage —that is, preservation by freezing —of gametes except in pursuance of a licence. Subsection (2) should also refer to storage: keeping is a wider term than storage and it is not intended that the Secretary of State should have the power to make regulations prohibiting keeping gametes in any way other than preservation by freezing. I beg to move.
On Question, amendment agreed to.
[Amendment No. 33A not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 34:
Page 2, line 37, leave out ("keeping") and insert ("storage").
On Question, amendment agreed to.
Viscount Caldecote Viscount Caldecote moved Amendment No. 35:
Page 2, line 39, at end insert —
("(4) Not more than three premises shall be licenced for activities specified in subsection 1(c) above.").
The noble Viscount said: As Amendment No. 27 was not carried, the activities authorised by Clause 4(1)(c) can be undertaken subject to a licence. I believe that we would all agree that it is most important, in view of what was said in connection with Amendment No. 27, that such activities should be effectively regulated and that the terms of any licence granted should be rigidly enforced.
The greater the number of licensed premises, the harder it will be to inspect them effectively and enforce the terms of the licences. It seems to me that if three places were licensed to carry out such tests that would be reasonable. It would ensure that there was an adequate number of such places where the testing service could be provided. I beg to move.
Lord Ennals: The issue of the value of the hamster test, shortly put, has already been debated. Various concerns were expressed and by a substantial majority of two to one the matter was decided. These tests have been carried out for the past 14 years without —at least, so far as I know—protest from any side of the Chamber, or from elsewhere. I suppose some people may say that part of the horror is the use of animals in research. However, we have recognised that this is a test which has substantial backing, which has a considerable effect and which, if it had been abolished —although, fortunately, the amendment was not carried —would have led to most unfortunate consequences for those people suffering from infertility; namely, one in 16 of the population.
If we recognise the fact that such tests must continue in the interests of good research —properly protected, as we have agreed —then I do not see a case for limiting the number of such centres to three. Access to the test would be readily available only to those living near one of the three centres. It would impose considerable difficulties on those living at a distance. Apart from the cost and inconvenience of travel to one of the three centres, it would add to the cost of the treatment. The transport of the sperm between centres would require the purchase of a special container which would maintain a constant temperature of 37 degrees centigrade. That could prove difficult when long journeys are involved. Why should that be done in any case if it is a recognised and accepted form of test whose value has been proved? No alternative has been found. Why should we limit the number of centres to three? Whom would we benefit by doing that?
Baroness Hooper: We discussed the substance of the amendment when we discussed Amendment No. 27. In the two cases which are permitted by the Bill, as was established, the ultimate safeguard is that the embryo resulting from the process must be destroyed immediately. For those reasons, the Government's view is that it would be inequitable to restrict the number of premises which could be licensed to carry out the activity and therefore I trust that my noble friend will feel able to withdraw his amendment.
Viscount Caldecote: I thank my noble friend the Minister for her reply. The fact that the tests have been carried out for a long time is neither here nor there. Many people were not aware that they were being carried out. I recognise that some inconvenience would be caused if the amendment were carried.
As the noble Lord, Lord Ennals, said, it is important that the premises should be properly regulated. If 10, 20 or 30 premises are to be licensed it will be difficult in practice to inspect and effectively

819
enforce the terms of the licence. That is my only point. I am not trying to prevent the tests being done. We dealt with that matter when we dealt with Amendment No. 27. If my noble friend thinks that the amendment is unreasonable perhaps we can leave it now and bring it back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
Clause 5 agreed to.
Schedule 1 [The Authority: Supplementary Provisions]:
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 36:
Page 23, line 21, after ("informed") insert ("by the views of persons having wide knowledge or experience in the fields of law, social work, philosophy and religion as well as medicine or science and").
The noble Duke said: The amendment will ensure that the licensing authority does not become dominated by scientific and medical interests. That accords with the recommendations of the Warnock Committee which said, with regard to a licensing authority, that the new body would need access to expert scientific and medical advice. We therefore envisage a significant representation of scientific and medical interests among the membership. It will also need to have members experienced in the organisation and provision of services. However, that is not exclusively or even primarily a medical or scientific body. It is concerned essentially with broader matters and with the protection of the public interest.
If the public is to have confidence that the body is independent —that is, is not to be unduly influenced by sectional interests —its membership must be wide-ranging and the lay interest should be well represented. We recommend that there should be a substantial lay representation on the statutory authority to regulate research and infertility services and that the chairman must be a lay person. I beg to move.
Baroness Hooper: I very much understand the reasons which have prompted this amendment. The Government made it clear in the White Paper that the membership of the Human Fertilisation and Embryology Authority would be likely to include people with wide knowledge and experience in the fields mentioned in the amendment. However, the Government think it would be wrong if these categories were specifically mentioned in paragraph 4(2) of Schedule 1, as not only would this unduly tie the hands of the Secretary of State in choosing the right balance of membership when he comes to do that, but also there are people who are members of other disciplines which, like nursing and counselling, could make an equal claim to being appointed to the authority.
It would be easy to load this provision with a long list of highly appropriate disciplines and experience, but that would be to run the risk of unduly confining Ministers when they come to make appointments to this important new body. While, therefore, I have
820
every sympathy with what the proposers of this amendment are seeking to achieve, I can assure them that it is to be expected that people with the experience and from the disciplines they mention will find their way on to the authority when it is appointed. It would be unduly restrictive to confine choice in the way the amendment suggests. I trust that the noble Duke will feel able to withdraw his amendment on this basis.
Lord Jenkin of Roding: I should like to make a particular plea that one category of people who should be considered for appointment are those who have a particular expertise in the field of medical ethics. I ask this because a couple of years ago I was invited to carry out a private review of an interesting and worthwhile body called the Institute of Medical Ethics. During the course of that review I became profoundly convinced that there has been growing up, both in Britain and in other countries, notably America, a considerable corpus of expertise which results from the mixture of disciplines not only medical and legal —which are obviously important —but of moral theology and similar disciplines of that kind.
It so happens that the interim committee includes one such person, Professor the reverend Canon G. R. Dunstan, who is the emeritus professor of moral and social theology at the University of London. I have no doubt that he makes a considerable contribution to the work of the interim committee. I became convinced that, in this growing number of issues, where medical science is confronting the public with a range of new moral issues which have to be resolved, the people who have devoted, in some cases, a lifetime of work to these subjects have a considerable insight to bring.
This can be of great value to those who perhaps come with only one discipline and who find the breadth of vision that these experts can give to be of great value. I hope that my noble friend will feel able to take account of this. It would not be for me remotely to suggest names, but there are quite a number of people from whom the Government choose in making their appointments.
11.15 p.m.
The Earl of Lauderdale: I rise to support this amendment, and to try to correct something that my noble friend the Minister said from the Front Bench. She talked about not confining it to certain kinds of people. The hard fact is —and there will be very few Members on either side of this Committee who will not agree with what I am going to say —that whenever the Government appoint a so-called neutral committee, many of us find that it is always biased in a particular way.
There have been many times when the choice of theologians has leant on the liberal side without a fair balance there, and there are many reasons why this body should be able to draw upon the widest possible variety of disciplines if it is to have public confidence. It is important that that body wins public confidence. I was rather disappointed with what my noble friend the Minister said in her first comment on this amendment. She seemed to be saying that

821
the amendment would somehow confine appointments to a particular category. However, that is not the object. The object of the amendment is to widen the categories to make sure that the body is balanced and wins public confidence.
If the Minister cannot give an undertaking to look at the amendment now, I hope that my noble friend will be willing to bring it back with vigour on Report as it is a serious matter which affects the whole Bill. The whole Bill depends on the licensing authority. Many of the assurances which have been offered hitherto depend on the suitability of that authority and on the fact that it enjoys public confidence. If my noble friend the Minister cannot be more forthcoming now, I hope that my noble friend will not despair and will be willing to come back to this matter with vigour and rally a lot of support for a Division early in the day when we could perhaps carry it.
Lord McGregor of Durris: It should be said that the membership of the present Interim Licensing Authority under the chairmanship of Dame Mary Donaldson covers all the categories of persons mentioned in Amendment No. 36 and includes many more besides. It is important to note that the Interim Licensing Authority has established itself very firmly as a body, having achieved public confidence.
Earl Jellicoe: I wish to endorse everything which the noble Lord, Lord McGregor, has just said. I find myself very sympathetic to the general approach of my noble friend the Duke of Norfolk and of my noble friends Lord Lauderdale and Lord Jenkin on this issue. I hope that the Government will ensure that there is the widest possible spectrum of lay representation on the authority.
Lord Henderson of Brompton: I wish to follow what the noble Earl, Lord Jellicoe, has said in the confidence that the Secretary of State would do exactly what he has asked for. Therefore, it is not necessary to lay that down in the Bill.
The Duke of Norfolk: I wish to thank the Members of the Committee who have spoken, including the noble Lord, Lord McGregor, the noble Earl, Lord Lauderdale, and the noble Lord, Lord Jenkin. We feel strongly that there should be a wide representation. The noble Earl, Lord Jellicoe, also mentioned that. I am a little bit unhappy about the idea of the present membership of the licensing authority being taken on completely. I think there should be a new authority which will no doubt include some members from the present one but which would also contain many new people. That would give the country a feeling that this Bill has had an effect in this area. However, having heard the comments of my noble friends, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 37:
Page 23, line 21, at end insert ("and that a reasonable balance is maintained amongst the membership of the Authority between persons in favour of and against the carrying out of activities requiring to be licensed by section 3 of this Act").
The noble Duke said: If Parliament chooses to place a restriction upon the use of the human embryo in IVF and research —and all sections of opinion in the Chamber wish to place some restrictions on those practices —it is necessary that the authority should not be dominated by those who are unequivocally in favour of or against the practices involved. Some scientists have already expressed a desire to experiment beyond 14 days. If the wishes of Parliament are to be respected, it is necessary to ensure a balance on the authority as required by this amendment. I beg to move.
Lord Ennals: I had more sympathy with the previous amendment than I have with this one. Whoever is appointed must administer the law. If someone wanted to go outside the law, namely beyond 14 days, they should not be appointed. To require that there should be a balance and that, for example, half the members should disagree with the legislation is rather like saying that half the members of a health authority should not support the National Health Service or that 50 per cent. of the Church Commissioners should be atheists. If we want the job to be done properly such a limitation, rather than a broad spread of membership as suggested in the previous amendment, would be very unfortunate.
Lord Jenkin of Roding: I too should be unhappy if the amendment were carried. I say that on the basis of experience. On one occasion I had to make appointments to a body which was concerned with nuclear power. One of the appointees made it clear that there were certain aspects of the job which because of his views on nuclear power he did not feel that he could properly undertake. That was a very unsatisfactory arrangement. I have a feeling that if one had to look for people who were opposed to the principle of the Bill —supposing that the vote on Clause 11 goes in favour of research —it would pose considerable difficulties of conscience. I had experience of such a situation on the committee which I appointed, and it was not a happy one.
Lord McGregor of Durris: I am chairman of an independent self-regulatory body which enforces a code of practice upon all print advertising. Nobody would wish to appoint a group or persons of monolithic unity of view to any such body. However, if it is to work at all there must be a consensus of opinion. In the case that I have in mind there must be a consensus that self-regulation is a method of achieving the task superior to statutory regulation. In any such body if consensus cannot be built among the members, the job which the body exists to undertake simply cannot be performed
Baroness Hooper: The short discussion on the amendment has been useful. I believe that if it were accepted it would prove axiomatic in practice. In appointing the members, as the White Paper indicated, the Secretary of State will wish to ensure that the authority represents a mixed and balanced set of views. That said, I can assure the Committee that it is not the Government's intention to appoint an authority packed with those who are partisan on

823
the issues. I hope that with that assurance my noble friend will feel able to withdraw his amendment.
The Duke of Norfolk: I am glad to have heard what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 38:
Page 23, line 32, at end insert —
("( ) The Secretary of State shall secure that at least half the members of the Authority have not been involved in conducting or securing the conduct of any project of research for which a licence may be granted under this Act.").
The noble Duke said: The amendment would ensure that at least half the members of the authority are not involved in research on embryos should that be allowed. It would not preclude their having been involved in treatment or storage activities. If research on embryos is permitted, that will be necessary for the reasons given in connection with the previous amendments. If those granting licences for research were predominantly the same persons performing the research, it would be unrealistic to expect there to be any effective control.
The amendment is similar to the two previous amendments. The purpose behind the three amendments has been the feeling of the Pro-Life Group that the Secretary of State should be in control and not the authority so that there is day-to-day control by Parliament. We want the authority to report to the Secretary of State. We do not wish to see the whole of the controlling authority dominated by one section of the community. I beg to move.
Baroness Hooper: I have some sympathy with the spirit of the amendment. Under paragraph 4 of Schedule 2 to the Bill as it at present stands, at least a third but no more than half of the members of the authority, with the exception of the chairman and deputy chairman, shall either be registered medical practitioners or scientists involved in embryology. It is highly unlikely that Ministers would seek to appoint that portion of the membership exclusively from among people who are involved in embryo research, if that should be Parliament's decision. Equally, the White Paper's proposals about the membership of the authority stress that it will need to include a majority of people who are lay. Thus, it is likely that in practice the Bill as at present drafted will secure what the amendment seeks to achieve.
Nonetheless, in view of the concern about the ethics of such research, which in all probability will continue to be held by many people in this country if Parliament decides to approve research involving human embryos in the strictly controlled circumstances provided by the Bill, the Government will consider the debate on this amendment carefully and —it almost goes without saying —without commitment, see whether it is possible for an amendment to be brought forward at a later stage of the Bill which would meet more explicitly the concern expressed in the amendment. I hope that my noble friend will feel able to fall in with that position.
The Duke of Norfolk: I thank my noble friend for that assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 6 agreed to.
Clause 7 [Reports to Secretary of State]:
[Amendment No. 39 not moved.]
Earl Jellicoe Earl Jellicoe moved Amendment No. 40:
Page 3, line 35, leave out ("two years") and insert ("twelve months").
The noble Earl said: The amendment which I am moving, which also stands in the names of my noble friend Lady Platt and of the noble Lords, Lord Ennals and Lord McGregor, is simple, straightforward and not in the least controversial. Given those admirable virtues, I trust that it will be acceptable, not least to the Government.
Clause 7 provides that the Human Fertilisation and Embryology Authority should report to the Secretary of State on its first year of activities and thereafter at two-yearly intervals. Our amendment is designed to make those reports annual, as is the case with the reports of the Interim Licensing Authority.
My reasons for that are as follows. The first concerns precedent. The ILA, under its admirable, charming and efficient chairman, has reported annually. It has been able to do so with its skimpy resources. I see no reason why the new authority with its far greater resources should not be able to follow suit. Moreover, the ILA's reports have been far from pro forma. They have contained much valuable information on the clinics that it has licensed, on the guidelines under which they operate, on the research projects that it has approved and not least on research projects that it has not approved and the reasons for that, and much else besides.
My second reason is that, if the regular annual reporting has been desirable with the ILA, it is even more so with the powerful new authority with its increased powers which we are at present creating. The whole field of human fertilisation and embroyology is fast-moving. Reports at two-yearly intervals could be far from up-to-date. Moreover, the noble Baroness, Lady Warnock, said in our Second Reading debate that the new authority's decision will be of deep interest to other countries; all the more reason that its reports should be as contemporary and informative as possible.
Above all, I believe that when one is operating in a field as complex, fast moving and controversial as this one, as much openness as possible is highly desirable. I believe that the discipline of annual reports —to government, to Parliament (I emphasise that) and for the benefit of the general public both at home and abroad —is not a bad thing in itself. I observe that there was fairly wide support for that view in this Chamber at Second Reading, and it came not only from those who favour research. Among those who held that opinion at Second Reading and voiced it was my noble friend the Duke of Norfolk.
I was also encouraged then by the response of my noble friend Lady Hooper. Therefore I hope that she will find this simple little amendment acceptable. I beg to move.
1130 p.m.
Baroness Hooper: The arguments of my noble friend Lord Jellicoe are very convincing. Indeed he and other members of this Chamber raised the point about annual reports in the course of the Second Reading debate.
The purpose in drafting Clause 7(1)(b), to provide for reports every two years after the first year of the authority's existence, as I explained at Second Reading, was to avoid imposing too heavy an administrative burden on the authority. Nevertheless, after considering the arguments then advanced, we came to the conclusion that the preparation of an annual report would be a useful discipline for the new authority and indeed would provide valuable data. Therefore the Government are happy to accept this amendment.
On Question, amendment agreed to.
[Amendment No. 41 not moved.]
Clause 7, as amended, agreed to.
Clause 8 [General functions of the Authority]:
[Amendment No. 42 not moved.]
Lord Harvington Lord Harvington had given notice of his intention to move Amendment No. 43:
Page 4, line 2, after ("about") insert ("the creation of embryos and the keeping or use of").
The noble Lord said: Owing to the lateness of the hour and the fact that the noble Duke's amendment has not been moved this evening, I think that probably the Committee will be glad to know that I do not propose to do anything about the remaining amendments which stand in my name and appear in the Marshalled List before Clause 11. That, I think, leaves the noble Lord, Lord Henderson, by himself.
[Amendment No. 43 not moved.]
[Amendments Nos. 44 to 46 not moved.]
Clause 8 agreed to.
Clause 9 [Licence committees and other committees]:
[Amendments Nos. 47 and 48 not moved.]
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 49:
Page 4, line 31, at end insert —

(b) at least one person who is authorised to carry on or participate in any activity under the authority of a licence; and

(c) persons numbering more than half but not more than two-thirds who neither are or have been medical practitioners (as defined in Schedule 1 (4)(3)(a)); nor are or have been, concerned with keeping or using gametes or embryos outside the body.").

The noble Lord said: I am happy to say that the Lord Henderson is not alone! He has with him the noble Lords, Lord McGregor of Durris and Lord Prys-Davies, and the noble Earl, Lord Jellicoe. I can
826
explain this amendment very briefly. It concerns licence committees.
It has been widely thought that it would give public confidence if the licence committee, as opposed to the authority itself, had on it a majority of lay members. I very much agree with that. I also agreed, though I did not say so at the time, with the noble Duke's amendment, Amendment No. 38. I was very glad that that amendment had a receptive acknowledgment from the noble Baroness on the Front Bench. I hope to receive the same kind of receptivity from her with this amendment.
In my amendment paragraph (c) provides for:
"persons numbering more than half but not more than two-thirds who neither are or have been medical practitioners …nor are or have been, concerned with keeping or using gametes or embryos outside the body".
I hope that that point would have the support of everyone in the Chamber. But I think that paragraph (b) would give some comfort to the medical fraternity in providing:
"at least one person who is authorised to carry on or participate in any activity under the authority of a licence".
There should be someone of that standing on the licence committee. The amendment that I propose is very simple. It provides those two additions to the composition of a licence committee. I beg to move.
Baroness Hooper: The amendments seeks to define more precisely the balance of membership of licence committees to be set up by the authority. As Clause 9(5) is at present drafted it specifies that at least one member shall be "lay" in the sense of not being someone authorised to participate in an activity to be licenced under the Bill. The amendment would require a majority of non-medical or scientific members or those authorised to carry out licensed activities.
While I sympathise with the spirit of the amendment, which in many ways reflects the policy behind Schedule 1 to the Bill, which provides that the chairman and deputy chairman and a majority of the other members must neither be doctors nor embryologists, in practice in the context of licence committees, it could be too restrictive. The Committee will no doubt keep in mind that there are likely to be a number of licence committees operating at the same time and that the authority may need to set up licence committees quickly to deal with emergencies which may lead the committee to suspend or revoke a licence. Without some measure of flexibility it could in practice be difficult to convene a licence committee at short notice. Clause 9(5) provides that the membership of licence committees should be specified in or determined by regulations and the Government will keep very much in mind the points made in proposing the amendment when they come to prepare those regulations.
We are considering also the earlier amendment, No. 38, as the noble Lord, Lord Henderson, has reminded us. I hope that with that assurance the noble Lord will feel able to withdraw his amendment.
Lord Henderson of Brompton: If the noble Baroness is saying that she will very kindly consider not only Amendment No. 38 but also Amendment No. 49, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
Clause 9 agreed to.
Clause 10 agreed to.
Baroness Blatch: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Penzance Albert Pier Extension Bill
Returned from the Commons with the amendments agreed to with amendments; the amendments considered and agreed to.
House adjourned at twenty-one minutes before midnight.