HL Deb 13 February 1990 vol 515 cc1344-70

9.5 p.m.

House again in Committee.

Clause 27 [Meaning of "father"]:

Baroness Elles moved Amendment No. 127: Page 14, line 21, leave out ("unless it is shown that he did not consent") and insert ("if he consented in writing").

The noble Baroness said: The purpose of this amendment is clear. First, I think there should be clarification in the Bill that the husband must consent to the procedure as outlined in Clause 27(1) if he is to be considered the father of the child, as it is stated in Clause 27(3). Secondly, there must be evidence of the consent of the husband. In my view, and that of my noble friend Lord Grantchester, that evidence must be in writing. Thirdly, I must ask: how is it possible for somebody to show non-consent to a particular action?

As one can imagine, the husband may not even know that the treatment has taken place and that his wife has undergone AID. The wording of the provision does not reflect what we should like to see in the Bill. If the father is to be treated as the father of the child —when I refer to the "father" I mean the husband of the woman who has undergone the treatment —it must be clear beyond any shadow of a doubt that he has given his consent. I shall not go through all the arguments that could be adduced in support of the amendment. Its meaning and intention are clear. I hope that my noble and learned friend will consider it and that, if he does not like the wording, he will consider the input that it is intended to make in the clause.

Lord Ashbourne

I am in favour of the amendment. It is another case of removing an ambiguity. I am always in favour of removing ambiguity from legislation, and on that basis I support the amendment.

Baroness Warnock

The committee that considered the point spent a great deal of time on whether to ask for consent in writing. In the end it seemed that if consent in writing were required, especially in the case of artificial insemination, that might cause a great deal of hardship and a certain amount of confusion. The committee received a considerable body of evidence on the subject and the evidence that finally weighed with us was that there were a number of women for whom not having a child was a ground for divorce. Most of those women were Asian. Many women from that community wrote to us. In that community it is presumed that infertility is the woman's problem. It is not recognised that there is such a thing as male infertility, and so those women have to seek artificial insemination with the knowledge of their husbands.

It was not that we approved of that practice, but it happens on a considerable scale because the penalty for not doing so is divorce and destitution for those women. That is one class of case that weighed with us when we decided that it was better to present the case in this rather negative way.

There could be some husbands who do not, and put into writing that they do not, want their wives to have artificial insemination. That would be evidence that the husband had not consented. It seemed to us that it would be proper to ensure that in the normal case the husband of the pregnant woman would be deemed to be the father and would take the responsibility of being the father of the resulting child. That was why in our report we recommended something similar to Clause 27. I hope that the amendment is not accepted.

Lord Kennet

I understand the reasoning behind the Bill as drafted, but will the noble and learned Lord the Lord Chancellor tell us of any precedents there may be in English or British law for Parliament to direct a court to find that someone has done something unless he can prove that he has not?

Lord Prys-Davies

Initially I found the amendment attractive, but I ran into difficulties because I believe that there is a precedent for the clause in Section 27 of the Family Law Reform Act 1987, which deals with artificial insemination. For the sake of consistency therefore I would follow the wording of the Bill.

Lady Saltoun of Abernethy

Snowden and Mitchell came down heavily on the side of requiring written consent from the father. I mention that fact although it is at variance with what the noble Baroness, Lady Warnock, said, but I believe that it is important.

The Lord Chancellor

As the Committee has heard, the Bill, as drafted, provides in Clause 27(2): If, at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the treatment. That provision continues and extends the rebuttable presumption under Section 27 of the Family Law Reform Act 1987 in respect of children born as a result of artificial insemination by donor. That provision was of course accepted by Parliament in 1987 and, so far as I am aware, has not been thought to be problematical or ambigious. The clause as drafted extends the existing law relating to AID to the other techniques.

In the great majority of cases the issue of consent will be clear. It is already the usual practice of gynaecologists to withhold AID treatment unless the partner gives written consent. We can expect that practice to continue and, if it wishes to do so, the Human Fertilisation and Embryology Authority could include such a requirement for all treatments in its code of practice, which will be subject to parliamentary approval.

There may, however, on rare occasions be some doubt about whether consent has been given, perhaps, for example, where AID is carried out at home: it is after all a fairly simple procedure. Where such doubt does arise, Section 27 of the 1987 Act and the clause as drafted guards against hardship to the child by, in effect, creating a presumption that the husband of a married woman has consented to the treatment and is therefore in law the child's father, with the corresponding responsibility for his upbringing and maintenance. In the Government's view, if there is any doubt about consent it should be determined in the child's favour rather than the husband's. This approach is in line with the common law which provides a presumption that the child born to a married woman is that of her husband. I would not wish to see the protection that those presumptions together provide for a child eroded or weakened.

So perhaps the answer to the question put by the noble Lord, Lord Kennet, is, first of all, that Section 27 of the 1987 Act provides a precedent. However, perhaps more fundamental is the attitude that the common law takes to a child born in wedlock: unless the husband in effect establishes that the child is not his, it is presumed to be the child of the husband.

As to requiring the consent to be in writing, again we can expect that to be the general practice and again it could be dealt with in the code of practice. It would be perfectly reasonable for the doctor, the person in charge of the treatment, to require the consent to be in writing and it could well be dealt with in that way in the code of practice so as to avoid any doubt. However, to insist upon it as a matter of law, as this amendment would, would mean that, in the absence of writing, even where there was clear evidence that the husband had consented, he would not be treated as the father. In practice and law the child would be fatherless, with no rights of support against anyone other than his mother where there was an AID situation. That in the Government's view would not be right.

To summarise, as the Law Commission pointed out (page 175 of its Report on Illegitmacy, Law Com. No.118) it would be hard on a child whose paternity and status had been settled for some years if, in the course of his parents' marriage breaking down, his legal paternity depended on proof of consent to an operation years before or upon proof of a particular document". That approach was endorsed by the Warnock Committee in paragraph 4.24 of its report, as the noble Baroness, Lady Warnock, has said. These are always somewhat difficult questions but I believe the balance is in favour of staying with the existing law. Therefore I would urge your Lordships that we should stay with the Bill as drafted.

9.15 p.m.

Baroness Elles

I thank my noble and learned friend for that explanation. I am afraid it goes back to the argument we had earlier today on the identity of the child and the child wanting to know who its true father is. I am very grateful to the noble Baroness, Lady Warnock, who has in fact come out with one of the reasons why this is not going to be possible. There may sadly be a group of Asian women who may carry on living with their husbands but may have AID; the husband may be living in a world of deception and deceit and may not know that he is not the father of the child thus produced. If that is the kind of Bill that the Committee wishes to produce, well and good. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128 had been withdrawn from the Marshalled List.]

[Amendment No. 129 not moved.]

[Amendment No. 130 had been withdrawn from the Marshalled List.]

Baroness Elles moved Amendment No. 131

Page 14, line 33, leave out ("not")

The noble Baroness said: With the leave of the Committee, I would wish to take with this Amendment No. 132; they are dependent one upon the other. We have just discussed Clause 27(2) where the husband, not having given his consent but certainly not having refused it, would be deemed to be the father. However, in the case where the father does not give his consent, who would be the father of the child? Clause 27(4) states that where the sperm of a man who has given his consent to be used as a donor is used, he nevertheless is not to be treated as the father of the child. My amendment would remove the word "not". Where the husband had definitely refused to give his consent, the donor would be treated as the father of the child. Clearly, it seems to me that the direction in which this Bill is going would deny the child knowledge of its genetic father in any circumstances.

I should be grateful if my noble and learned friend could explain the purposes of subsections (6) and (7) and tell the Committee whether that is the fact. Clause 27(2) is what one might call a blind because, although the husband may not give his consent, at the end of the day the child will remain that of the marriage in law. I should be grateful for an explanation. I beg to move.

Lord Prys-Davies

I too have difficulty in understanding Clause 27. Will the husband who has given consent for his sperm to be used in the assisted fathering of his own child by his wife be treated by the Bill as the father of the child? The clause appears to provide two different answers to that question. By virtue of Clause 27(2) he will be treated as the father. However, as was said by the noble Baroness, Lady Elles, by virtue of Clause 27(4)(a) he will not be treated as the father.

If those two subsections are in conflict there is an inconsistency. Subsection (4)(a) should be amended so that it does not cover the situation where the man who has given his consent is the husband.

I would ask my noble and learned friend to expatiate upon this aspect —that subsections (6) and (7) are there precisely for cases where the father has refused to give his consent, but under common law presumably the child would still be treated as the child of the husband and wife in marriage.

Again, I am in difficulty about the way in which subsection (6) will affect the position, unless the key to resolving the conflict between Clause 27(2) and Clause 27(4)(a) lies in subsection (6). Subsection (6) will overreach subsection (2) and we may obtain the result that he is the father of the child. I should be grateful for guidance from the noble and learned Lord.

The Lord Chancellor

In amending subsection (4) of Clause 27 the amendment has two quite separate effects. First, as regards paragraph (a) of subsection (4), the clause as at present drafted ensures that a man who provides sperm through the statutory scheme for use by others is not to be treated as the father of any resulting child. In the Government's view it would be unfair to sperm donors if as the result of a public-spirited act aimed at helping infertile men and women they were to make them selves liable for the maintenance and upbringing of the child. Not only would such a result be unfair to donors but it would not in any way reflect the social reality and would carry the very grave risk of seriously reducing the number of donors and hence the supply of sperm.

The Government recognise that as drafted subsection (4) could have the result of producing a child who has no father where subsection (2) of the clause does not supply a substitute. The matter is one of balance but the Government consider that the scales come down clearly in favour of subsection (4) as presently drafted.

There is another objection to the amendment as it would affect paragraph (a) of subsection (4). It is not clear how this amendment would affect married couples who use AID. If the amended subsection (4) were to be construed as overriding subsections (2) and (3), it would mean that the sperm donor and not husband of a married woman would be treated as the child's father where AID was used. Presumably, that is not the intention of the amendment but the clause would need further amendment to make that clear were it to be carried into the Bill. I am not sure what my noble friend wishes to do about that matter.

I now turn to the second effect of the amendment; namely, that on paragraph (b) of subsection (4). As drafted, it provides that where the sperm of a man, or an embryo created with his sperm, is used after his death he is not to be treated as the child's father. This does not apply only to donations. It also applies to cases where a man's sperm is stored and after the man's death is used to treat his wife, or where an embryo is created in vitro using the gametes of a man and is implanted after his death.

The effect of the amendment would be that the man would be the child's legal father even if the sperm or the embryo were used after his death. It does not appear to me that that is a very desirable result. As the Warnock Committee pointed out, it is essential that there should be some finality for those administering the estates of deceased persons. Posthumous fertilisation could cause real problems of inheritance and succession. The Government agree strongly with those views and accordingly could not support this amendment.

The second amendment, which would leave out subsections (6) and (7), may be viewed as being consequential to the amendment designed to make sperm donors the fathers. But it would be quite wrong to underestimate the importance of those subsections.

In England and Wales and Northern Ireland there is a presumption at common law that a child born to a married woman is the legitimate child of that woman and her husband. In Scotland in the same circumstances there is a presumption of paternity. The presumptions can be displaced in a number of ways; for example, by showing that the husband and wife had not had sexual intercourse at the appropriate time or by showing that the husband and the child are not genetically related, such as by the techniques to which I referred earlier.

Where the common law or statutory provisions such as the adoption legislation provide a satisfactory answer to the question "Who is the father?", it is unnecessary for the clause to provide an answer. Indeed, it would be undesirable for it to do so, for that would place the children concerned in a special category. As the clause will give priority to the common law presumption, no purpose will be served by anyone showing that that presumption does not apply in the case of a Clause 27(2) child unless it can also be shown that the husband did not consent. Thus most Clause 27(2) children will be treated as the children of their "parents" in the same way as genetic children.

Subsections (6) and (7) are included in the Bill to ensure that the earlier provisions of the clause which determine who is to be the father of a child do not upset or cast doubt on common law or statutory arrangements which already in some cases provide a clear answer. I believe that I have shown that the amendment would cause a considerable degree of uncertainty and, therefore, I suggest that the Committee should not agree to it. Subsection (6) rules. One only needs to go beyond that if subsection (6) or the corresponding Scottish provision does not provide an answer.

Baroness Elles

I am grateful to my noble and learned friend for that reply. If I understood him correctly, subsection (6) fills in the gap where the husband has not given his consent under Clause 27(2), so that the child has a parent in law. Is that correct?

The Lord Chancellor

The subsection provides that presumption. Of course the presumption may be a rebuttal. Therefore, it is possible that the answer is not finally provided under the clause.

Baroness Elles

I was concerned that the child would be left without a father at all. I wanted clarification as to the legal position if under subsection (4) the donor is not to be treated as the father and under Clause 27(2) the father has not given his consent. I believe that my noble and learned friend has given that clarification.

The Lord Chancellor

Perhaps I may just clarify what I believe to be the correct position. If what I might call the social father —the woman's husband —has not given consent and can show that he is not the father of the child because he was absent for a long time or something like that, in that situation the child will not have a legal father because the donor's identity is not revealed. In I hat situation the child will have no father at law.

Baroness Elles

I am still fairly grateful to my noble and learned friend because this is clearly a difficult area. I should be grateful if he could look at the matter to clarify the position which he has just mentioned where a child may be left without a father at all. We cannot have that in the interests of the child. I do not believe that subsections (2), (4) and (6) are completely adequate. Of course I shall withdraw the amendment, but I should be grateful if my noble and learned friend could look at this matter in view of the situations which could arise.

Amendment, by leave, withdrawn.

[Amendment No. 132 not moved.]

Clause 27 agreed to.

9.30 p.m.

Clause 28 [Effect of sections 26 and 27]:

[Amendments Nos. 133 to 141 not moved.]

[Amendment No. 142 had been withdrawn from the Marshalled List.]

Clause 28 agreed to.

Clause 29 [The Authority's register of information]:

Baroness Hooper moved Amendment No. 143: Page 15, line 22, leave out from ("register") to end of line 25 and insert ("which shall contain any information obtained by the Authority which falls within subsection (1A) below. (1A) Information falls within this subsection if it relates to —

  1. (a) the provision of treatment services for any identifiable individual, or
  2. (b) the keeping or use of the gametes of any identifiable individual or of an embryo taken from any identifiable woman,
or if it shows that any identifiable individual was, or may have been, born in consequence of treatment services.").

The noble Baroness said: In moving Amendment No. 143 I speak also to Amendments Nos. 153A through to 153K.

Amendment No. 143 sets out clearly the information which the authority will be required to keep which it obtains from the licence holders. This information will be protected from disclosure by Clause 31. It is highly sensitive information, as we have already discussed, and I am sure it is right that we should do all we can to protect it from disclosure. The effect of the amendment is to provide that the authority must keep a register of the sort of information described in the new subsection (1A) outlined in the amendment; that is, in relation to the provision of treatment services for any identifiable individual; or the keeping or use of the gametes of any identifiable individual or of an embryo taken from any identifiable woman; or which shows that an identifiable individual was born following treatment services.

The register will contain the information necessary to enable the authority to answer questions which may be put to it in terms of the later provisions of Clause 29 and Clause 30. In other words, questions will be asked of it by people wishing to ascertain if they were born as a result of one of the techniques to be licensed by the authority or by the registrar general to settle cases of disputed paternity.

The main purposes of Amendments Nos. 153A to 153K is to make the meaning of Clause 31 clearer and to provide for different exceptions to the general rule in Clause 31 which prohibits disclosure of confidential information which is obtained by members or employees of the authority. The purpose of the amendments is to provide for different exceptions from the general prohibitions depending on whether the information in question is contained in the register kept by the authority under Clause 29 or is other information obtained in confidence.

I trust that that information is adequate for the Committee and I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Cocks of Hartcliffe)

Amendment No. 144 is pre-empted by the acceptance of Amendment No. 143.

[Amendment No. 144 not moved.]

[Amendments Nos. 145 to 149 not moved.]

Lord Henderson of Brompton moved Amendment No. 150: Page 15, line 42, after ("information") insert ("save that such information entered in the register before the date of implementation of this Act as would specifically identify the person concerned shall not be given").

The noble Lord said: Amendment No. 150 has to a certain extent been discussed when a large number of amendments were discussed with Amendment No. 82. The one I refer to in particular is Amendment No. 87.

This amendment is an attempt to deal with the concern that up until now sperm donations have been made on the understanding that the donor's identity will not be made known. When we were discussing Amendment No. 87 among others, I believe that somehow we got into the context of property. I am not concerned about property, but about the possible retrospective character of this legislation. We have heard from our earlier discussions that there was acceptance of the argument that the donor's identity should be made known. I do not need to rehearse the argument. It is much contested by those who think like myself and by, for instance, the National Association for the Childless.

I do not consider it acceptable that the conditions on which the donation has been made until now, or even as it is made now, should be betrayed by retrospective legislation, which seems to be the purport of these provisions. I am asking whether the provisions of Clause 29(3)(a) are retrospective or not. They seem to be so, but they may not be. I am heartened by some of the amendments which are to be moved in the name of the noble Baroness, Lady Hooper. I am referring to the block of amendments, Nos. 153A to 153K. I refer in particular to Amendments Nos. 153D and 153E.

All this makes for some complication, but we seem to be making some progress. It may be that the problem that worries me and some of my friends about retrospective legislation does not arise since Clause 29(1) refers to, recorded for the purposes of that licence in pursuance of … this Act".

In that case confidential information obtained prior to implementation of the Act ought not to be affected. I am puzzled, and it is because of this puzzlement that I am moving this amendment. I would like to know whether or not there is retrospective legislation which would invalidate an immunity which until now has been regarded as sacrosanct. I beg to move.

The Lord Chancellor

As I understand it this amendment would prevent the authority from making information available to an applicant which would identify his or her genetic parents derived from information relating to the period before the legislation came into force. I do not think the amendment is necessary because, as the Bill is at present drafted, Clause 29 does not empower the authority to make such identifying information available to children born as a result of the techniques to be licensed under the Bill. Unless the Bill is subsequently amended to alter the policy that no identifying information is to be made available to children born as a result of donation, there is no need to specify that as this amendment does. The Bill does not allow that in any event.

In any case, I agree with the noble Lord, Lord Henderson of Brompton, that to make a retrospective provision about identifying information when that information was not made available to the clinic or centre on that basis would not be a measure lightly to be entered into. As the noble Lord said, the donors have given their gametes on the basis that the information will not be made available. It would need a very strong measure indeed to overrule that retrospectively. I do not see any basis in the Bill for suggesting that that might happen.

Lord Henderson of Brompton

I am very much reassured by what the noble and learned Lord has said. It is just that kind of statement that I was eliciting. I am very grateful to him and I shall look carefully at what the noble and learned Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 151 not moved.]

Lord Robertson of Oakridge moved Amendment No. 152: Page 15, line 46, at end insert — ("; or (c) if the applicant so requires at the time of making his request, specifying by name any person who would or might, but for the said sections 26 to 28, be a parent of the applicant.").

The noble Lord said: This amendment would remove the anonymity of donors. It would allow children created through the donation of gametes to discover if they so wished and after they had reached the age of 18 the identity of their genetic parents. Following the previous debate, I hope that the amendment will not prove retrospective. If the amendment is agreed to, children created through AID will be placed on a par with adopted children who can ask for a copy of their original birth certificate once they reach the age of 18.

I do not think it is necessary for me to go over the arguments in favour or against allowing children to know the identity of their genetic parents. I believe it to be to their advantage to have that information. Much has been made of the position of donors. What has not been said is that disclosure would make them face up to the consequences of their action. This must be for the public good. In any case, the interests of the children concerned are infinitely more important than those of the donor. I beg to move.

Lord Ashbourne

I rise to support the amendment. The Committee has to decide whether it will put first the interests of the child or the interests of the sperm donor. I entirely agree with my noble friend that we should put first the interests of the child. Therefore I am in favour of giving a child who has reached the age of 18 access to the truth if he seeks it.

I should be grateful for help on one point. As I understand it, there has been legislation in Sweden to remove anonymity. I know that the Government were studying what has happened in other countries. Is there any information from Sweden concerning this issue which could help the Committee?

Lord Kennet

Before dinner we discussed an amendment which sought to put a "D" on birth certificates to show that the registered father was not the true biological father. The Committee rightly thought that that should not be pursued because it amounted to publishing the information and broadcasting it to the world. It would be thrust on the attention of the owner of the birth certificate. This amendment takes us into quite different territory. We are considering what is the correct response for the state to give to an adult who is asking for information which the state has.

Both noble Lords who have so far spoken in the debate have referred to the two parties concerned, the donor and the child generated by that donation. There is a third party in the deal envisaged by the amendment; that is, the state. We have to consider what effect the provision in the clause as drafted would have on relations between the individual and the state. The state possesses knowledge of the identity of the father, or even, in rarer circumstances, of the mother, of a citizen. The citizen goes to a representative of the state to ask whether there is any danger of incest if he marries. The representative of the state looks up the catalogue and says that there is no danger of incest. The citizen then asks, "You have the facts; who was my father?" The state says, "I have the facts and I know; but I refuse to tell you". That means that the state is in possession of information about the very identity of some of its citizens which it will not divulge.

It seems to me that the clause as drafted takes us over a rather important threshold. If a threshold can have ramifications, as I would say this one has, then I would say that such ramifications go far wider than the Bill. If a precedent is set for the state refusing to divulge the identity of people to those people, for what would that precedent not serve? There can be no greater, more intimate or more ontological information about anyone than their identity. If that can be withheld, desite their pleas, surely any lesser information could henceforth be justifiably withheld.

I daresay that this is not the time for the noble Lord, Lord Robertson of Oakridge, to press the matter, but I hope that the subject will be further aired and that we may have an opportunity to return to it at a later stage of the procedings on the Bill.

9.45 p.m.

The Marquess of Reading

I should like to speak in favour of the amendment standing in my name. I should especially like to say how concerned I am about the fact that the Bill appears to discriminate against the children. I understand the dangers outlined by the noble and learned Lord on placing the words "by donation" on the birth certificate. However, if the child is either suspicious or his parents advise him that he is a product of AID or of IVF, or if the child at the age of 18 wishes to know the identity, after counselling, I cannot understand why he should not be able to identify the donor. Perhaps we are in danger of discriminating against the child in favour of the donor.

The Earl of Lauderdale

I should like to support the remarks made by the noble Lord, Lord Kennet. He touched upon a completely new aspect; namely, the state having information about a person's identity and refusing to disclose it. It may seem a strange comparison, but in recent months we have witnessed extraordinary changes on the face of Europe, not least the revolution in Romania. This is a terribly dangerous power to leave in the hands of the state.

Of course, it is much too late to press the matter to a Division, so I can only hope that my noble and learned friend will look again at the matter, especially from the viewpoint of the noble Lord, Lord Kennet. In my view he made a serious and significant point which requires a thorough answer.

Baroness Llewelyn-Davies of Hastoe

I should like to ask the noble and learned Lord whether he will clarify a matter which has puzzled me throughout all the discussions we have had about the disclosure of the identity of the donor. Most noble Lords who moved or spoke to the amendments have expressed their worry about doctors inquiring into the genetic properties of the donor because of the possibility of genetic disease. But, so far as I know —I may be quite wrong about this —there is no dossier about the genetic properties of the donor. Is that information in fact kept filed?

So far as I can see, if they knew the identity of the donor, people would not be any the wiser about what is to me the most important aspect of the matter; that is, whether he might pass on genetic disease. Can the noble and learned Lord clarify the position for me?

Lord Ennals

When the noble and learned Lord replies, will he comment on what effect this provision might have on donors? Would it not be a considerable deterrent to a potential donor coming forward if there was the danger that at some stage he might be accosted and accused of the responsibility of parenthood?

Lady Saltoun of Abernethy

I am a little worried about the whole question of incest. Young people today start living together from the age of 16 and may well already have had at least one child by the age of 18. That is the age by which it is suggested that the applicant could discover something about his or her genetic descent. It could then turn out that two young people who had been living together from the age of 16 and who had already had at least one child were half-brother and half-sister. What does one do then? I wonder how much this matters. The Pharoahs got by quite nicely marrying their brothers and their sisters.

Perhaps I may tell Members of the Committee a brief story. Centuries ago in Peru a family lived in a remote district—mother, father and two children. The parents died when the two children —a boy and a girl —were very young. With no guidance, the inevitable happened and children resulted. The bishop travelling through that district visited the house and discovered what had happened. He scratched his head and wondered what to do. Then he decided that the only possible course was to marry them.

I wonder whether we are making too much of a fuss, provided there is some limitation on the number of children a donor is allowed to father. Perhaps for the sake of these wretched young people we had better leave the matter of inadvertent incest alone.

The Lord Chancellor

Perhaps I may take up the last point that the noble Lady, Lady Saltoun, made. In considering the terms of licences the authority may decide that it is wise to limit the number of donations by an individual for the reasons given. No doubt other precautions could be taken with regard to that and to the way in which sperm from a particular donor is used.

The amendment would extend the right of a person aged 18 or over to information about his genetic parents to include the right to know their names. As I explained earlier, the idea we have had so far is that genetic information about the parents should be available for the purpose of medical treatment and other such purposes. However, non-identifying information would be given to an applicant.

This amendment goes further and includes the right of the child to know the name of the donor. The first point is that with egg embryo or sperm donations the donor may not even be aware that a child has resulted from his or her donation. The Warnock Committee examined the matter and concluded that children should have access only to non-identifying information about the donor.

Some Members of the Committee have asked whether we support the child or the donor. Unless there is a donor in this situation there will be no child. In a sense, unless one gives such protection as the donor needs in order to become a donor, the interests of the child will not arise at all.

My noble friend Lord Ashbourne mentioned Sweden, about which there is some information in the report by Jennifer Gunning to which I referred a week ago. I think that it is quite informative and I shall read an extract from the section dealing with Sweden, on page 39: In 1985 the Swedish Government passed a law on artificial insemination following the publication of a Report by a Government Committee set up in 1981 to look at issues related to assisted reproduction. This law restricted donor insemination to married couples, or those in a long-standing relationship. Treatment requires written consent from the husband or cohabitant who will be regarded as the legal father of the child. The most radical aspect of this law is the section relating to information about the donor which specifies that the child should have the right to obtain identifying information about the donor". That is as my noble friend suggested.

The report continues: It had been the tradition in the past for non-identifying information only to be held. The net effect of this change in the law was, firstly, to reduce and change the type of donors available—older married rather than younger single men offered themselves as donors—and, secondly, a reduction in the demand for donor insemination. In fact, many Swedish couples seeking donor insemination are seeking treatment in other countries where donor anonymity is still guaranteed". The practical effect of that measure appears to have been to reduce the availability of donors. That is the primary reason why the Warnock Committee does not support it.

I believe I have dealt with the matter of genetic diseases. The matter of genetic information will be relevant to that question. As I said in answer to earlier amendments, that information is much more reliable than particular information about the donor if there was any chance of that latter information being inaccurate. The noble Lord, Lord Kennet, and my noble friend Lord Lauderdale emphasised the point about the state having information which it withholds. Strictly speaking, in the system set up here, it is not an organ of the state but an authority which is independent of the executive government which will hold the information about donors and children born as a result of the techniques regulated by the Bill and people who have received one or more of the treatments.

Children born by donation will of course as a result of Clause 29(3) and (4) have access to non-identifying information about the donor. That is to be prescribed by regulations for the reason I have stated; namely, that information relevant to their medical situation might be important. However, the reason that the information is not provided is the one that I have given; namely, that the consideration of this matter by the Warnock Committee concluded that if there are to be donors in any substantial number anonymity is a necessary condition. The Government have no reason to differ from that conclusion. The experience in Sweden appears to lend considerable support to that view. As I said at the outset, this is not a question of children against donors. However, unless there are donors and anonymity for donors the chances are that this treatment of AID is unlikely to be available.

Baroness Seear

Before the noble and learned Lord sits down, I should mention that he referred to the matter of protecting the donor. Earlier he referred to protecting donors from any claims of responsibility as regards paternity and from any financial obligations towards the child. That is one thing, but if there is no such obligation and all the child obtains is the knowledge that a certain person was the donor but that the donor has no obligation whatsoever towards him, does that make any difference in the view of the noble and learned Lord?

The Lord Chancellor

I am not sure that I mentioned responsibility particularly. I understand that it is the identification of the donor that is likely to discourage him from coming forward. One can see that the fewer consequences identification has for the donor, the less identification is likely to pose a disincentive. On the other hand, I suppose that once one's identity is known one's security against any other form of responsibility is apt to be diminished. Therefore in practical terms the result may be the same. The noble Baroness makes, as usual, an important point. However, I believe that, on balance, the Warnock Committee was right to hold that identification in itself is sufficient to make it unlikely that donors would come forward.

Lord Kennet

I hope that the Committee will bear with me for a moment. I do not want to lean on the point, for obvious reasons. However, I have seen reports—the validity of which I have not tested —that the Swedish experience was indeed as the noble and learned Lord the Lord Chancellor indicated, but that following the reduction in the number of donors immediately after the change in the law the number of donors coming forward has picked up. I have also seen it reported that there has been a similar experience in France. There was an immediate drop in the number of donors but it has since picked up again. I do not want to lean on the point because I do not have chapter and verse to quote which might seem to contradict the noble and learned Lord the Lord Chancellor's source. Perhaps there will be an opportunity on another occasion to go into the matter more fully.

The noble and learned Lord pointed out that it would not be the state as such which would be concealing the knowledge of his identity from the citizen but rather the licensing authority. I do not believe that ordinary citizens will make much distinction in their minds and in their feelings between the state as such and a statutory authority set up by Parliament to have dominion over the matter. Their feelings will be the same in either case. It will be the res publica, the corporate body which everybody regards as "Them", "It", 'Big Brother", the state, which will be the subject of fear and hatred and the cause of pain when that knowledge is denied.

10 p.m.

The Lord Chancellor

I do not wish to press the point about the distinction between the authority and the state, but the authority will be an independent body set up for that purpose.

So far as concerns the information that I gave about Sweden, when I first referred to the matter I mentioned when the report was compiled. I think that I am right in saying that the work was done last summer. The report is as up to date as that. I do not have in front of me the information about France. The report is available to all Members of the Committee, and no doubt some further study of it can be undertaken.

Lord Robertson of Oakridge

I am grateful to the noble and learned Lord for his comments on the amendment. I am also grateful to noble Lords who have spoken in support of the amendment. I should like to comment on something that the noble Lady, Lady Saltoun, said about limiting the number of times a donor could donate. That was the subject of Amendment No. 30, which did not find favour with the Committee. However, it would have helped with the problem.

Although the amendment has received a great deal of support I do not believe that this is the time to divide the Committee. However, I should like to be free to come back to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 153 not moved.]

Clause 29, as amended, agreed to.

Clause 30 agreed to.

Clause 31 [Restrictions on disclosure of information]:

Baroness Hooper moved Amendments Nos. 153A to 153K: Page 16, line 30, leave out from ("employee") to end of line 31. Page 16, line 35, after first ("any") insert ("other"). Page 16, leave out line 38 and insert — ("(3) Subsection (1) above does not apply to any disclosure of information mentioned in subsection (2)(a) above"). Page 16, line 42, at end insert— ("(bb) so that no individual to whom the information relates can be identified,"). Page 16, line 45, at end insert— ("(3A) Subsection (1) above does not apply to any disclosure of information mentioned in subsection (2)(b) above —

  1. (a) made to a person as a member or employee of the Authority,
  2. (b) made with the consent of the person or persons whose confidence would otherwise be protected, or
  3. (c) which has been lawfully made available to the public before the disclosure is made.").
Page 17, line 1, at end insert ("and no person to whom directions have been given"). Page 17, line 2, leave out ("mentioned in subsection (5) below") and insert ("falling within section 29(1A) of this Act"). Page 17, line 3, leave out from ("person") to end of line 10 and insert— ("(5) Subsection (4) above does not apply to any disclosure of information made"). Page 17, line 11, leave out ("or"). Page 17, line 12, leave out ("another") and insert ("a").

The noble Baroness said: With the leave of the Committee, I should like to move Amendments Nos. 153A to 153K en bloc. I beg to move.

On Question, amendments agreed to.

Lord Teviot moved Amendment No. 154: Page 17, line 13, at end insert— ("(d) to a person for whom services are provided in pursuance of the licence but only in so far as such disclosure is permitted under regulations").

The noble Lord said: The amendment is moved on behalf of the British Agencies for Adoption and Fostering. Its purpose is to enable the parents of a child born as a result of treatment services to give information to that child at appropriate stages of his or her development about his or her genetic parents if they were donors or gametes. The provisions as to confidentiality in Clause 31 as it stands are so rigidly drawn that it appears that the parents will not have access to that information.

Under the Adoption Agencies Regulations 1983 similar provision is made to that contained in Clause 31 of the Bill regarding confidentiality of adoption records. Nevertheless, an adoption agency is permitted to make disclosure of confidential case records as necessary for the purposes of carrying out its function. One of them specifically is to give to adoptive parents information about the child's personal history and background, partly in order, as the Department of Health, and then Social Services, circular on regulations (LAC) 84/3 makes clear, to enable them to pass the information on to the child.

Under the Bill, it is left to the authority to direct that information should be obtained about donors and to the Secretary of State by regulations to direct that certain information be disclosed to the child concerned on application. But the prohibitions on other disclosure contained in Clause 31 make it possible for the responsible authority to disclose any information about the donor or donors to the persons receiving treatment. While it is believed right that the Secretary of State should be able to insist that the identity of the donors is not disclosed at this stage, it is believed that it should be essential for the emotional well-being of the child as he or she grows up for the parents to be able to provide some information about the characteristics of its biological parent.

This is purely a probing amendment. I am interested to hear the comments of the Committee and particularly those of the noble and learned Lord. I beg to move.

The Lord Chancellor

I had judged the intention of Amendment No. 154 to be the same as that of the group with which we dealt earlier which had the aim of making identifying information available in respect of children born as a result of techniques to be licensed under the Bill. In that case the amendment would have the effect of making information defined in regulations available to those receiving services. I do not think, for the reasons that I have given in relation to other amendments moved by my noble friend Lord Teviot, and the noble Lady, Lady Saltoun, that it would be appropriate for us to agree to that extension of the policy in the White Paper and to make such information more widely available. Even with the safeguard which the amendment provides of regulations which would specify which categories of information would be available, I think it would be unfortunate if the confidentiality of data held by licence centres and by the authority about these sensitive treatments were to be breached.

Amendment No. 154A, the government amendment to Clause 31, seeks to provide for situations which are not covered in the current drafting of the Bill. It inserts paragraph (cc), which allows non-identifying information to be supplied, and paragraph (ccc) which makes provision for the case of a person to whom directions have been given who will need to be able to disclose permitted information to other persons. The inserted subsection (6) now provides that information may be released to the individual to whom it relates —for example, a donor or persons who are being treated —but that does not extend to any information showing that an identifiable individual was or may have been born in consequence of treatment services.

Given that the government amendment to Clause 31 will allow disclosure of non-identifying information to those receiving services, I hope that my noble friend Lord Teviot will feel that my comments have dealt with the substance of this amendment.

Lord Teviot

I shall certainly not press the amendment, but it was not in the group; it was a totally separate matter. I checked the grouping list. I note that there was a government amendment in the name of my noble friend Lady Hopper. I shall read carefully what has been said and hope that it will satisfy the points that have been made. If necessary, I shall return with another probing amendment on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hooper moved Amendment No. 154A: Page 17, line 13, at end insert— ("(cc) so that no individual to whom the information relates can be identified, or (ccc) in pursuance of directions given by virtue of section 23(3) or (4) of this Act. (6) This section does not apply to the disclosure to any individual of information which —

  1. (a) falls within section 29(1A) of this Act by virtue of paragraph (a) or (b) of that subsection, and
  2. (b) relates only to that individual or, in the case of an individual treated together with another, only to that individual and that other.").

The noble Baroness said: Amendment No. 154A inserts paragraph (cc) which allows non-identifying information to be supplied and paragraph (ccc) which allows disclosure by persons to whom directions have been given who will need to be able to disclose permitted information to other persons.

The inserted subsection (6) now provides that information may be released to the individual to whom it relates —for example, a donor or persons who are being treated —but that does not extend to any information showing that an identifiable individual was or may have been born in consequence of treatment services. That sort of information would therefore be disclosable only in accordance with Clause 31(6). I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clauses 32 and 33 agreed to.

Viscount Caldecote moved Amendment No. 155: After Clause 33 insert the following new clause —

("Inspection of premises

. —(1) The Authority shall ensure that every licensed premise is inspected at least annually.

(2) The Authority shall appoint to its staff competent inspectors in such numbers and with such qualifications as the Authority considers necessary to enforce the conditions of the licences granted to the premises and any other relevant provisions of this Act.").

The noble Viscount said: During the course of these discussions in Committee several Members have stressed the importance of strict regulation and enforcement for the licences and other provisions of this Bill. Indeed, I think that was an understanding of many noble Lords who voted for research; namely, if there were to be research, the conditions under which it was carried out would be very strictly enforced.

There seem to be two serious omissions in the Bill. First, there is no reference to the frequency of inspection of licensed premises. I understand that the Interim Licensing Authority believes that premises should be inspected at least annually. That deals with the first part of the amendment.

Secondly, there is no obligation on the authority as the Bill is drafted at present to appoint a sufficient number of properly qualified inspectors to inspect licensed premises and generally to enforce the provisions of the Bill. That is in striking contrast to the Food Safety Bill wherein in Clause 27 every food authority is required to appoint public analysts with proper qualifications approved by the Minister.

submit that in this Bill it is at least equally important to put an obligation on the authority set up under the Bill to appoint an adequate number of properly qualified inspectors to enable the authority to carry out its regulatory and enforcement responsibilities. It is true that in paragraph 8 of Schedule 1 (on page 24 of the Bill) there is a provision for the authority to: appoint such employees as it thinks fit".

But surely that is not sufficiently precise. I submit that it is of great importance to clarify and strengthen the duties of the authority as proposed in this amendment. I beg to move.

Lord McGregor of Durris

As the noble Viscount said, many noble Lords voted for the continuance of research on the footing that the strict control established by the Voluntary Licensing Authority would be continued by the new statutory authority. As the noble Earl said, it is self-evident that if the new authority is to do its job effectively and fulfil the expectations of Members of this Chamber, it must at least establish annual inspections and do so on the basis of a fully qualified inspectorate. It is only on that basis that public confidence in the regulation of research of this nature can be fully established. I very much hope that the noble Baroness will be able to accept the noble Viscount's amendment.

The Earl of Halsbury

I strongly support this amendment. One cannot experiment on an animal without having a licence from the Home Office. It is difficult to imagine that one can experiment on a human embryo without being inspected, even if one has a licence. If one is experimenting on animals the Home Office inspector can descend at random and one does not know when he will come. I believe that the amendment of the noble Viscount is very welcome.

Lord Ennals

The noble Viscount has very well made his case, and I entirely support it. If the words are not entirely appropriate, the noble and learned Lord will say so, but I hope that the principle will be accepted.

Lord Harvington

I entirely support everything that has been said. I cannot resist the thrill of finding myself on the same side as Lord McGregor for once.

10.15 p.m.

The Lord Chancellor

As we come towards the end of the Committee stage, it is very pleasant to feel an air of unanimity enveloping the Committee.

The Government take the view that efficient control of the licensing system is necessary. Whether it is quite wise to specify that every licensed premise, irrespective of the type of licensed premise, should be inspected at least once a year may be open to doubt. It ought to be for the authority to decide that. But I certainly understand the spirit of the amendment. It is clear that the confidence that the authority has in a particular area may have an effect on its decisions about inspection.

As has already been said, the unexpected inspection is obviously the most powerful weapon in the hands of an authority, and it may well be that more frequent than once a year inspections would be perfectly common. However, in view of the general response which has been given to this amendment, I think it would be right for me to consider the matter further.

Viscount Caldecote

I did not quite catch what the noble and learned Lord the Lord Chancellor said. Was it that he would accept this amendment or that an amendment would be brought forward at Report stage?

The Lord Chancellor

I said that if my noble friends were agreeable I should like to consider the matter further.

Viscount Caldecote

For the second time tonight, I should like to thank my noble and learned friend sincerely for his acceptance of the amendments I put forward. In view of his undertaking, I am very happy to withdraw this amendment.

Amendment, by leave, withdrawn.

Clauses 34 and 35 agreed to.

Clause 36 [Offences]:

Baroness Elles moved Amendment No. 156: Page 19, line 25, at end insert ("or (c) exceeds any authorisation contained in a licence or fails or omits to observe or perform any condition contained in a licence granted to him or his employer").

The noble Baroness said: This Bill, in Clause 36, provides for certain sanctions in certain circumstances against persons who contravene provisions laid down in the Bill. Some acts are totally forbidden, as in Clause 3(2), or they may be prohibited unless a licence is granted. A licence may authorise certain acts within strict parameters, such as those set out in Clauses 12, 13 and 14 of the Bill, but there appears to be no provision to deal with the necessary safeguards which are needed against any excess of any authorisation allowed, or failure to observe any of the provisions which are required under the Bill, not only as far as concerns the person to whom the licence is granted, but also in face of employees who might exceed authorisation or fail to act in accordance with instructions laid down.

It is perfectly possible to imagine all sorts of situations where that could happen. I do not want to start being controversial or polemical, but one could imagine an extension of the 14 days; one could imagine an embryo being kept on with a hamster after the time laid down. There are all sorts of examples of which one could think which could happen, although I am not saying that they would happen. Nevertheless, there should be provision in the Bill for any excess of any authorisation. This amendment seeks to remedy that gap in the Bill. I beg to move.

The Lord Chancellor

The amendment would provide that a person who exceeds any authorisation contained in a licence, or who fails or omits to observe or perform any condition contained in a licence granted to him or his employer, is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine or both.

The offence contained in Clause 36(1), and the corresponding penalties to which my noble friend referred, are provided in the Bill for the most severe offence with which the Bill deals and that offence is restricted to any person who:

  1. (a) places in a woman an embryo or gametes which are not human,
  2. (b) mixes human gametes with the gametes of any other species, except in accordance with a licence, or
  3. (c) does anything which by virtue of Clause 3(3), such as placing any human embryo in any other animal species, may not be licensed under the Act.

The Government regards those matters as very serious, but while I can appreciate the spirit in which the amendment is moved, I do not believe that the activities with which it deals fall into quite the same category as those to which Clause 36(1) applies. The Government believe that appropriate sanctions for the activities the amendment describes are provided for elsewhere in the Bill. A person who exceeds any authorisation contained in a licence by bringing about the creation of, keeping, or using an embryo without being licensed to do so, or by storing any gametes or using donated gametes in the course of providing treatment services except in accordance with a licence would be guilty of an offence under Clause 36(2) and liable, on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both. Clause 17 enables a licence committee to revoke a licence if it is satisfied that the person responsible is not discharging the duty under Clause 16 which provides that it shall be the duty of the person responsible to secure that the conditions of the licence are complied with.

For that reason I feel that the amendment puts the activities with which it deals, which are not already contained in Clause 36(1), into a more serious category than they should be put. We believe that offences under Clause 36(1) should be those which carry the severest penalties and that the other matters, which could amount to criminal offence, should be dealt with rather less severely.

It is important to focus on the severe matters and deal with them rather than provide for too vague an offence in Clause 36(1). That is why we have distinguished between the two levels of offences. I believe that adequate sanctions for the activities described in the amendment are provided for in the Bill elsewhere than in Clause 36(1).

Baroness Elks

I thank my noble and learned friend for that explanation. I understand his argument that Clause 36(1) is kept for severe offences; nevertheless, there could presumably be a severe offence where there is an excess of authorisation or where an employee or licensed person fails to act. However, in view of what my noble and learned friend has said and the lateness of the hour, I might come back to the point after considering carefully his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hooper moved Amendment No. 157: Page 19, line 29, at end insert ("otherwise than by doing something which, by virtue of section 3(3) of this Act, cannot be authorised by a licence").

The noble Baroness said: I shall speak also to Amendments Nos. 158 to 163. Amendment No. 157 provides for the severer penalties in Clause 36(1) to apply where people not only create, keep or use an embryo without a licence when one is required, but also do something that a licence cannot authorise under Clause 3(3).

The words suggested to be deleted by Amendment No. 158 are unnecessary. As currently drafted, Clause 36(2)(c) makes it an offence to fail to comply with any directions given by the authority. Amendment No. 159 therefore seeks to replace the excessively broad provision and would instead make it an offence to fail to comply with directions issued under Clause 23(5)(a). Amendments Nos. 160 and 161 are intended to extend the defence contained in Clause 36(9) to circumstances in which a person is not working under the immediate direction of the persons responsible under a licence. Amendment No. 162 is required merely to remove the word "of," so that it is clear that the directions refer to the directions in No. 161.

Amendment No. 163 is designed to extend the defence of due diligence to a person to whom directions have been given by the authority. With that explanation, I beg to move.

On Question, amendment agreed to.

Baroness Hooper moved Amendments Nos. 158 to 163: Page 19, line 31, leave out ("or regulations made by virtue of subsection (2) of that section"). Page 19, line 33, at end insert ("given by virtue of section 23(5)(a) of this Act"). Page 20, line 28, after ("time") insert—

Page 20, line 29, after ("licence") insert— Page 20, line 30, leave out ("of"). Page 20, line 34, after ("applied") insert ("or to whom directions had been given").

The noble Baroness said: With the leave of the Committee, I beg to move Amendments Nos. 158 to 163 en bloc.

On Question, amendments agreed to.

Clause 36, as amended, agreed to.

Baroness Hooper moved Amendment No. 164: After Clause 36, insert the following new clause—

("Consent to prosecution

. No proceedings for an offence under this Act shall be instituted—

The noble Baroness said: The effect of this amendment is that no proceedings can be brought under the Act in England, Wales or Northern Ireland without the consent of the relevant Director of Public Prosecutions. Scotland is not included because under Scottish law there is no provision for bringing private prosecutions except in highly restricted circumstances. The amendment is designed to ensure that only well-founded cases are brought before the courts so that they are not burdened with frivolous prosecutions. I beg to move.

The Duke of Norfolk

The effect of this clause would be to prevent prosecutions under the Bill when enacted without the consent of the Director of Public Prosecutions. It would make private prosecutions brought by ordinary members of the public impossible. This appears to me to be a serious erosion of the effectiveness of the Bill. The right of ordinary citizens to bring a case in law is of the greatest importance. This is indeed an issue which concerns many ordinary members of the public, as was indicated by the Gallup Poll which I mentioned on a previous occasion and which I fear was misunderstood by my noble friend Lord Craigavon. Outright majorities opposed the use of the human embryo for experiments to develop contraceptives or abortifacients.

On the first question of research into genetics and chromosomal abnormalities, 32 per cent. were opposed to research. The 58 per cent. who were in favour of research were then asked whether they would support it if the aim was to discard affected embryos. Twenty-nine per cent. of those people, which is 17 per cent. of the total, then opposed research. Thirty-two per cent. plus 17 per cent. equals 49 per cent. opposing research, with only 32 per cent. still supporting it, if the aim was to discard affected embryos; and 20 per cent. did not know.

These figures are always complicated, and I apologise to my noble friend if I failed to explain it earlier so that it could be understood. I have put the figures in the Library. I hope that your Lordships will take time to look at them because there are a number of other interesting results from the poll. I am making the point that this is a matter which the public are very concerned about. I think it would be wrong to make it impossible for us to act through the courts to see that the law is enforced. For this reason, I would oppose the amendment.

Lord Harvington

I must support my noble friend the Duke of Norfolk in opposing the amendment. We have a strange situation in British law where many Acts remain on the statute book which no one would wish to see enforced. For instance, a taxi driver who does not carry a bale of hay in his boot is breaking the law but no one would expect to see him feeding the hay to the horse which was towing him back to his garage. That is a matter of which we should take note.

Such a system has its dangers. The present Director of Public Prosecutions might decide that it is not in the public interest to prosecute in respect of a certain matter when many people would like to see the law enforced. Such events now take place.

I apologise for introducing a new topic at this late hour but it is by way of example only. The Abortion Act provides a good example in practice. Most abortions are carried out on the grounds of the risk to the mental health of the mother. However, in its report on unplanned pregnancy published in 1972 the Royal College of Obstetricians and Gynaecologists stated: It is no such danger of injury to the majority of these cases as the indication is purely social". That must mean that many illegal abortions are taking place but there are no prosecutions. How do we know that there will be prosecutions in this case? If the Director takes such a course in other cases, why not in this case? It is not a situation which anyone envisaged in 1967. I am sure that the noble Lord, Lord Ennals, did not, nor David Steel and the noble Lord, Lord Houghton.

A similar comment can be made about the time limit. Today many late abortions are those of children capable of being born alive, yet there are no prosecutions. I do not believe that we can have any confidence in the DPP to ensure that laws of this kind will be enforced. We must be most wary of preventing all other avenues of enforcement.

10.30 p.m.

Lord Brightman

I must comment on the last observation made by the noble Lord. I do not have the statistics to hand but I assure him that extremely few abortions take place —in fact, none —of a child capable of being born alive, save exceptionally where the child is an encephalic or for some other reason it is impossible for it to survive.

I believe that it would be quite wrong in this highly sensitive area to permit private prosecutions. I wholly support the amendment.

Lord Robertson of Oakridge

The right is not available in Scotland, but it is the basic right of the individual in England to take out private prosecutions, except where it is specifically declared to be the opposite. I can understand that in cases where national security is at stake there is a reason for limiting private prosecutions. However, merely because there may be frivolous prosecutions is no reason at all. I am sure that the courts have ways and means of dealing with frivolous prosecutions. I believe that Parliament should look closely each time this right of the individual is whittled away.

Lord Dean of Beswick

I have listened with great care to the previous speakers. I was not aware that the amendment concerned abortions. Those Members of the Committee who listened to the "The Today Programme" on the radio this morning will have heard medical people from Romania talking about what was happening there under President Ceaucescu. Abortions were banned and those which took place were completely illegal. The maiming and crippling of young women, some with young families, was appalling. That situation would exist here if private prosecutions were introduced. The flood gates would be opened.

With my limited knowledge of the Bill I did not believe that abortion was relevant to the amendment. However, anyone who wants to talk in terms of turning back the clock on abortion would do well to listen to the tape of those interviews with medical people from Romania. They have sent a desperate appeal for medical equipment to allow the doctors in Romania to start performing abortions. I believe that Members of the Committee should consider that when they propose turning back the clock. It seems odd that a Communist and dictatorial country like Romania could behave in such a manner. One would expect such a country to be more liberal but it is a closed shop as regards abortion. Abortion is not available at any time for any reason. I hope that the Committee will reject this amendment.

Lord Kennet

Perhaps I can bring the Committee back to the subject of the Bill and to the territory within which it will apply. No doubt frivolous prosecutions are a great danger in many spheres. For that reason we are all fairly accustomed to the institution of DPP only crimes. That is a special class of crimes which are considered so sensitive to somebody that the citizen must be deprived of his normal right of taking out a private prosecution. That right must in those cases be confined in the hands of the DPP.

No doubt there is readily available a list of offences which are DPP only. I believe that the judgment of the Committee on this fundamental amendment —which has come rather late in the day —would be better if the noble Baroness could tell us what the list is. Prosecutions in this field will be sent to stand beside other DPP only offences. I would not feel capable of making a rational decision without knowing the list of those offences beside which this will stand. I am now repeating myself for a reason that I believe the noble Baroness will understand.

Viscount Caldecote

I ask my noble friend what action is open to members of the public if they sincerely believe that the DPP is not prosecuting when he should be. Does that come within the duties of the ombudsman or is there some other recourse open to them?

Baroness Elles

I should like to add my voice to those who oppose this amendment, which has nothing to do with abortions or Romania but is to do with this country and the people who may feel that they have been ill treated or have had an offence committed against them through some action by the authority. Those of us who have had direct dealings with the electorate know of cases where women in particular have been totally frustrated and do not feel that they have been treated justly. I believe that putting the DPP between an individual and the courts is depriving that individual of a right to justice in this country. Therefore, I join those who oppose the amendment.

Viscount Craigavon

Before the Minister replies, I was mentioned by name by the noble Duke and perhaps I may just reply to what he said. It is relevant to the amendment in that he referred to public support for his point of view.

I stand by the statistics which I produced before. As the noble Duke said, a copy of this information is available in the Library. I referred to a final question in a series of questions which was put in a Gallup Poll on behalf of SPUC. The question asked whether human embryos should be used at all in experiments. Having first mentioned various purposes for which human embryos might be used, there was a general question. Thirty-seven per cent. said that embryos should not be allowed in experiments and 36 per cent. said that they should be allowed. There was a large number of "Don't knows" —27 per cent.

That corresponds closely with the MORI survey which appeared in the House magazine on 4th December and which also found a figure of 38 per cent. in favour of a total ban on live human cells. There were 11 per cent. "Don't knows", leaving a figure of 51 per cent. in favour of research up to 14 days and after 14 days.

The point I was making and to which the noble Duke has just referred —this is relevant to the amendment —is that the public gave a verdict also in his survey on the matter of research into genetics and chromosomal diseases. Only 32 per cent. said embryo research should not be allowed in that case but 58 per cent. said it should be allowed. What seemed to happen is that having obtained an unfavourable result the survey then recast the question in a much narrower form and tried to obtain, by a very loaded question, a different result. Those figures are available in the Library for inspection.

Baroness Hooper

I am aware of the statistics quoted by my noble friend the Duke of Norfolk which he has so kindly placed in the Library, but I should like to make absolutely clear that this amendment does not make private prosecutions impossible, as my noble friend suggested. It simply requires the consent of the DPP before such a private prosecution can be brought.

In answer to my noble friend Lord Caldecote, who asked what recourse was available if the DPP refuses consent, my understanding is that the DPP operates under the superintendence of the Attorney-General who, in turn, is answerable to Parliament. As I said in presenting the amendment, it is designed to ensure that only well-founded cases are brought before the courts and is in no way intended to infringe an individual's right to attempt to bring a public prosecution.

While I cannot answer the noble Lord, Lord Kennet, by giving him a list of offences covered by the DPP, I can tell him that there is an identical provision in Clause 4(2) of the Surrogacy Arrangements Act 1985. That is all I can say to answer the points raised.

Lord Kennet

Knowing one other Act in which this provision exists seems to me to be an insufficient basis on which to ask the Committee to decide on this matter. As the noble Baroness said, she is sure there is a list. Might it not be advisable to withdraw the amendment for the moment and introduce it at a later stage when that list is before us? We shall then see in full the company which we are sending this Bill to join and see what status the Government intend the Bill to have.

Baroness Hooper

I do not feel it is necessary at this stage to withdraw the amendment, but I will inform the noble Lord, Lord Kennet, of the additional cases, which I am not able to do spontaneously at the moment.

Lord Kennet

That will be too late.

The Deputy Chairman of Committees

The Question is, That this amendment be agreed to. As many of that opinion will say "content"?

Noble Lords


The Deputy Chairman of Committees

To the contrary, "not content"?

Noble Lords

Not content.

The Deputy Chairman of Committees

I think the "contents" have it.

Lord Kennet

Not content.

The Deputy Chairman of Committees

I think the "contents" have it.

Lord Kennet

Not content.

The Deputy Chairman of Committees

The "contents" have it.

Amendment agreed to.

Clause 37 [Regulations]:

[Amendment No. 164A had been withdrawn from the Marshalled List.]

Baroness Hooper moved Amendment No. 165: Page 20, line 44, leave out ("3(3)(b)") and insert ("3(3)").

The noble Baroness said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clauses 38 to 41 agreed to.

House resumed: Bill reported with amendments.