Lords Sitting of 26 November 2001

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

Sport and Physical Activity
Lord Jenkin of Roding Lord Jenkin of Roding asked Her Majesty's Government:
Whether the work of the several government departments concerned with the promotion of sport and physical activity is being effectively co-ordinated.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, my department works very closely with all government departments with an interest in the promotion of sport and physical activity. The Minister for Sport chairs a monthly meeting with colleagues from other departments and the chair of Sport England. In view of the importance of sport and physical activity to schools and of the health benefits of exercise, we work particularly closely with the DfES and the Department of Health. We also co-operate closely on a range of issues with the Home Office, the Department for Work and Pensions and the DTLR.
Lord Jenkin of Roding: My Lords, in the light of all that, perhaps it is not surprising that there seems to be a good deal of confusion. Is there not a very clear distinction to be drawn between, on the one hand, the promotion of what one might call "high level sport" with a view to creating national champions and national championship teams and, on the other, the question of encouraging the generality of the population of all ages to take more exercise in
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the interests of better health? Whereas the former may or may not be a proper concern of the noble Baroness's department, is it not now clear, as recommended in another place by a Select Committee, that the Department of Health should be firmly in charge of that latter objective? Given that obesity has more than doubled in the past 20 years and is still rising and deaths from coronary heart disease are still rising, is it not important for the Department of Health now to take charge of this very important part of our national life?
Baroness Blackstone: My Lords, I am not sure that I entirely accept what the noble Lord, Lord Jenkin of Roding, said. My noble friend the Parliamentary Under-Secretary of State at the Department of Health—I do not believe that he is in his place today—is one of the key Ministers involved in the interdepartmental collaboration on the question of physical activity and sport. However, I believe that the noble Lord makes too rigid a distinction between sports excellence and overall improvements in the physical activity and, therefore, the health of our population. It is out of those overall improvements, in particular with regard to school children, that we shall attain more excellence in the pursuit of sport at county, national and international levels.
Baroness Billingham: My Lords, are talks between the Treasury and the DCMS still ongoing with a view to providing some much-needed tax concessions for amateur sports clubs, which, by and large, are run by volunteers on a non-profit-making basis and are the backbone of British sport? The outcome of those discussions is eagerly awaited by such clubs. Do we have any words of encouragement for them?
Baroness Blackstone: My Lords, in my initial Answer I failed to mention the Treasury and the Inland Revenue. Obviously I should have done so. However, in his Budget statement my right honourable friend the Chancellor undertook to consult on the best way in which tax relief might help

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community amateur sports clubs. I very much agree with my noble friend about their value. They are the backbone of sporting activity in this country and they contribute to that physical health and well-being to which the noble Lord, Lord Jenkin of Roding, referred. My officials have been working closely with Treasury and Inland Revenue officials, and a consultation paper will be published very shortly.
Lord Addington: My Lords, the Minister rightly said that all government departments meet and co-ordinate closely on this matter. However, is it not the case that, no matter to which department we move sport, problems will always arise because it does not fit neatly into one package? Does she agree that we must consider whether a department for sport is the most appropriate way to deal with the matter? In addition, we have tremendous problems in relation to planning regulations. Indeed, I believe that the Government have promised a "domesday book" of sports facilities. Can the Minister tell us exactly when that will be published and whether there will be an opportunity to revise it? I believe that the planning provisions are contained in PG17. Will they be taken into account so that we may have proper statutory guidance as to what sports facilities are provided locally? Will there be a way of implementing those provisions?
Baroness Blackstone: My Lords, we do have a department for sport. It is the Department for Culture, Media and Sport. It is my department, although I am not the Minister for Sport. I accept entirely what the noble Lord says about the value of having such a department. He raised the issue of planning consents so far as concerns, I believe, recreational facilities and sports grounds. We are strengthening the protection that is involved in maintaining those facilities. The planning policy guidance note to which the noble Lord referred is PG17, and it is being reviewed. When that review has been completed—it raises quite complex planning issues—it will strengthen further the requirement on local authorities to provide good sports and recreational facilities.
Lord Monro of Langholm: My Lords, does the noble Baroness agree that, in world terms, her department has had a fairly disastrous two years with Picketts Lock, Wembley, Sheffield, the reduction in lottery funding, the Select Committee report and, of course, severe criticism about the handling of many major sports issues in this country? Can she tell me when her department will get a grip on sport and try to help the country to move forward?
Baroness Blackstone: My Lords, my department does have a grip on these issues. It is making sensible decisions on how to move forward with regard to all the issues that the noble Lord has just raised.
Lord Hoyle: My Lords, can my noble friend tell me whether the DCMS and DfES are going to improve school sports facilities? If so, how will that benefit the wider community?
Baroness Blackstone: My Lords, as I said in my initial Answer, my department works very closely with
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the DfES. It is investing some £115 million jointly with the education department in the provision of school sports co-ordinators. Those co-ordinators will be trained PE teachers and will work to ensure that the commitment announced by the Prime Minister in January—that is, that every child should spend at least two hours per week in high quality PE and sport, whether inside or outside the school curriculum—is carried out. My department is also investing a substantial additional amount—£130 million—in improving facilities, in particular, in our primary schools.
Lord Ouseley: My Lords, in light of the recommendations in the report commissioned by the Government through the Football Task Force and in view of the co-ordination that we hear is taking place across all departments, is it possible to say which government department is taking the lead with regard to the implementation of the recommendations contained in the report with regard to racism and people with disabilities? It appears from my inquiries that no one in any department has any awareness of the existence of the report or of its recommendations and no knowledge about who is implementing the recommendations.
Baroness Blackstone: My Lords, the issue of disability is an example of the need for joint work between the DCMS and the Department for Work and Pensions, which has the prime responsibility for disability. On racism, my department will work with the Home Office to ensure that the report's proposals and recommendations are taken forward.

UK Citizenship: Character Requirement
2.44 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Why they consider "opposing the government of a friendly country" to be inconsistent with the good character requirement for the award of British citizenship.
The Minister of State, Home Office (Lord Rooker): My Lords, Her Majesty's Government do not consider peaceful opposition to the government of any country to he inconsistent with the good character requirement. We take a wholly different view where that opposition entails violence or support for the use of violence.
Lord Avebury: My Lords, the noble Lord made a serious accusation against the person who is the subject of this Question; he has no grounds whatever for doing so. That person has been resident in the United Kingdom for 30 years, has always obeyed our laws and continues to do so. Is the Minister aware that in the past, citizenship has been granted to people who oppose their governments and who come from a wide background? That background includes: Mr Jan Kavan, the present Foreign Minister of the Czech

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Republic; the late Donald Woods, from South Africa; Mr Carlos Reyes, who was prominent in the campaign to bring Pinochet to trial; and Mr Prins Gunasekara, a distinguished lawyer from Sri Lanka. What is the difference between those cases and that involving the person who is the subject of this Question?
Lord Rooker: My Lords, I do not propose to discuss any individual case on the Floor of the House; it would he wholly improper to do so. The noble Lord chose to link his Question with a letter that was received recently. The noble Lord's Question makes a highly selective quote from the letter; it misses out the word "activities" in the phrase,
"activities in opposing the government of a friendly country".
The activities are the relevant issue and the selective quotation does no justice to the noble Lord's case.
Lord Avebury: My Lords, I take grave exception to the accusation that the noble Lord made across the Floor of the House. I ask him to reply to the request that I made on 2nd November, which was to meet me and discuss this matter in more detail than we can do on the Floor of the House.
Lord Rooker: My Lords, I am happy to meet any noble Lord or, more particularly, any Member of the other place regarding their constituents—I sometimes have to cancel or postpone appointments. If there is still a case to be met, fine; but I did not raise it and do not want to discuss the details on the Floor of the House.

Wind Turbines and Low-flying Aircraft
2.46 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
What conclusions the Ministry of Defence has now reached on the potential interference caused by wind farms to low-flying aircraft.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, it was realised some time ago that the proliferation of tall obstacles might present a hazard to low-flying aircraft within certain areas of the United Kingdom. It is generally acknowledged that the rotating action of wind turbine blades can interfere with radar systems. The Department of Trade and Industry is therefore sponsoring research by QinetiQ into the effects of wind turbines on radar. The project started in September this year and is due to conclude next September.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that Answer. I am sure that he is aware that the DTI is in the process of preparing a paper on the greater use of renewable energy. The intention is that the expansion of wind energy will very much be part of what this country needs to do. Will he reassure us that we have joined-up government in this respect;
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that the DTI and the MoD are not at cross purposes; and that the actions of the CAA—the national air traffic centre—and the MoD, in vetting planning proposals, are not cutting across each other or causing costly delays? Can we also have some assurance about consultation with other governments? The Danes seem to manage with a very much larger number of wind turbines without these problems, as do the Germans. The Spanish, the noble Lord may be aware, are even proposing to fuel some of their airports through nearby turbines. Either we have something to tell them or they have something to tell us.
Lord Bach: My Lords, I confirm that there is complete joined-up thinking so far as these matters are concerned. My department is working closely with the DTI and has met the Performance and Innovation Unit of the Cabinet Office. The Government—including, of course, the Ministry of Defence—fully support the notion that 10 per cent of the United Kingdom's energy needs should come from renewable sources by 2010.
Lord Campbell-Savours: My Lords, what about physical interference? Have there been any near misses?
Lord Bach: My Lords, I know of no near misses. I shall undertake research and write to my noble friend if there have been any. I think not.
Lord Harrison: My Lords, can greater public access be afforded to the MoD estate? How might that be achieved?
Lord Bach: My Lords, there is already a presumption in favour of public access to the rural estate, although operational safety and conservation interests, for example, restrict unlimited access. I take this opportunity to tell my noble friend that there has been a publication within the past couple of days; I hold it up—
Noble Lords: Oh!
Lord Bach: My Lords, I am not to do so. It is entitled Walks on Ministry of Defence Lands. It covers various walks in parts of the country from which I know noble Lords come. I shall make sure that a copy of the book—or more than one—is available in the Library.
Lord Howell of Guildford: My Lords, being allergic to intrusive land-based wind farms and, indeed, to too many low-flying aircraft—but not to walks—perhaps I may ask the Minister to assure the House that those two activities will, to some extent, restrain each other. I recognise that both are important. However. carried out to the extent to which they are in some parts of the country, both activities are thoroughly unpleasant environmentally and cause misery to many people.
Lord Bach: My Lords, the noble Lord has my assurance on that matter.
Viscount Brookeborough: My Lords, does the Minister not agree that making wind farms radar-friendly to our own aircraft should be purely for training purposes? Is it not more important to put increased resources into radar innovations to enable our Armed Forces to cope with any problems associated with wind farms which are not modified—ours may be modified in the future—in areas where those forces may be on operations?
Lord Bach: My Lords, the noble Viscount uses the phrase, "purely for training purposes". The House may think that badly phrased. Training is of crucial importance if our pilots are to do their job, both at home and abroad. As regards the second part of the noble Viscount's question, I believe that the project sponsored by the Department of Trade and Industry will come up with the result.
Lord Ezra: My Lords, the noble Lord referred to the Government's objective of 10 per cent of renewables by the year 2010. If that is to be achieved, there has to be a massive expansion of wind farms. We lag way behind our continental friends. In Germany, for example, there are nearly 7,000 megawatts of wind energy; we have only 400 megawatts, which is largely onshore. Unless the offshore question is settled quickly, we shall have no chance of achieving the Government's objectives.
Lord Bach: My Lords, the noble Lord is right. We must all work extremely hard to ensure that those objectives are achieved. That means that we shall need more wind farms. The Ministry of Defence is not opposed to wind farms per se; only when they cut across what is necessary for the defence of the realm.
Baroness O'Cathain: My Lords, bearing in mind that we shall try to meet the Kyoto obligations or targets, is it not true that the issue is not solely concerned with wind farms and that the whole problem could be resolved by more nuclear power development?
Lord Bach: My Lords, the House will forgive me if I do not enter into that particular exchange.
Lord Wallace of Saltaire: My Lords, can the Minister confirm that the objections by the Ministry of Defence relate also to offshore wind farms and not simply to onshore wind farms? Offshore wind farms are one of the areas in which we had hoped there would be considerable expansion of wind power.
Lord Bach: My Lords, there is no objection as such, whether to onshore or offshore wind farms. The matter will depend on whether they affect our ability to train our pilots.

Farm Licensing
2.53 p.m.
Baroness Byford Baroness Byford asked Her Majesty's Government:
Whether they plan to introduce a licensing scheme for farmers.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, there are no plans at this point, but registration, whole farm certification and various forms of licensing are among the many options which the Government and the policy commission will need to consider to help to build a sustainable, modern farming industry. No decisions will be taken before we have received the recommendations of the policy commission or without full consultation with all interested parties.
Baroness Byford: My Lords, I thank the Minister for that response. However, I am slightly mystified by it. Only about 10 days ago he was reported in the press as having said that the Government were considering the whole question of licensing.
Perhaps I may declare a family interest in farming, yet again. If the Government are considering licensing farms, who will be responsible for that? Will it be local government, central government or will one person cover all aspects? How will that happen? Will the Government also review the existing regulations and take great care not to impose more regulations on our farmers and horticulturists than are borne by other countries, thus exporting our important food and farming industry?
Lord Whitty: My Lords, I am sorry that the noble Baroness was mystified by slightly misleading reports in the press. As I said in my Answer, the Government and the policy commission will consider various options for bringing together the many regulations which presently impact on farmers in the way she mentioned. There could be benefit to farmers in having a form of whole farm certification, dealing with a number of inspectorates at the same time, and pulling together many of the regulations which are presently a burden on farmers. Whether that will amount to full registration or to a licensing system is a second-order question and one which the policy commission and the Government will need to consider. We are certainly not at the point of announcing that we are committed to any form of policy on that matter. A considerable amount of work is needed before I could say how such a system would be administered, were we to go down that road.
Lord Livsey of Talgarth: My Lords, does the Minister agree that there is already in place a holding number system which is monitored by his department and by the European Union? Is the reason for the discussion about a licensing system because the system that exists is not being administered to the satisfaction of his department? Does he not agree that the

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introduction of a licensing system would infringe on the liberties of farmers and, indeed, produce an extra layer of unnecessary bureaucracy?
Lord Whitty: My Lords, the noble Lord is correct; a numbering system exists which identifies pockets of land and holdings on which subsidy is paid. However, that is not the same as the complete registration of farms. Indeed, some of the administrative problems we have had, in particular during the foot and mouth epidemic regarding the movement of animals, have been because that system has proved to be inadequate, with slightly bizarre map readings and other problems arising. A generalisation of a registration system, possibly combined with aspects of regulation and moving into the area of whole farm certification, could mean a reduction in the burden on farmers rather than the opposite.
The Countess of Mar: My Lords, perhaps I may first declare an interest, both as the wife of a farmer and as a specialist cheesemaker. Does the Minister realise how much I would appreciate having to deal with one authority for all the required inspections? Secondly, as regards holding numbers, many people who have a small number of animals, say four sheep or two goats, have not appeared as holders of animals. That is an area which needs to be rectified.
Lord Whitty: My Lords, I agree with the noble Countess on both grounds. Moving from a system of multiple regulatory authorities to a single system is difficult. However, I believe that any rationalisation of the process would be of benefit to farmers. As I have said, there are many different ways in which that could be done, whether or not we move to anything like full licensing. Any such system would need to include recognition of the relatively small farmers to whom the noble Countess referred.
Baroness Byford: My Lords, whatever road the Government decide to go down as regards regulation or licensing of farms, I beg the Minister to realise the extra burden that we carry in this country and the extra standards that are set. If they are not required for other foods which come into this country, we shall export not just our farming industry; the whole food sector will also be under threat.
Lord Whitty: My Lords, by and large, the standards which are applied to British farming are almost entirely determined at EU level. Although there are queries about the relative enforcement of those standards, we would defend the view that standards must be the same across the EU. The Prime Minister made clear that there will be no future gold-plating of EU standards as regards agriculture. The question of access from third countries is rather different, particularly in relation to animal welfare and disease controls, and is one that we have addressed before. The Government are looking at ways to improve import checks in that regard.

Human Reproductive Cloning Bill [H.L.]
3 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that this Bill be now read a second time.
Some 10 months ago your Lordships' House debated the regulations regarding human fertilisation and embryology research purposes. That debate was of extraordinary high quality and intensity. It was of the utmost importance to hundreds of thousands of people in this country who suffer from distressing and long-term illnesses and whose only hope for a cure lies in medical research and science.
But that debate was even more profound. It touched on matters which go to the very core of our individual beliefs, principles and values: from those who believe that research on embryos is ethically justified in the fight against serious diseases; from noble Lords who worry about the end point of such scientific advances; and from those who rejoice at the opportunity which new medical discoveries bring to humankind. I have little doubt that our debate today will be just as profound.
The purpose of the Bill, which extends to the whole of the United Kingdom, is to ban human reproductive cloning—the creation of another human individual using cloning techniques such as cell nuclear replacement, the procedure used to create Dolly the sheep. The Bill is short and tightly drawn to meet that aim and that aim only. Human reproductive cloning has been universally condemned. For humans it is both an unsafe and an unethical procedure.
In discussing the background to the question of human reproductive cloning, it is appropriate to refer back to 1982 when the Committee of Inquiry into Human Fertilisation and Embryology was set up to look at the ethical implications of developments following the birth of the first test-tube baby in 1978.
The committee, chaired by the noble Baroness, Lady Warnock, produced a comprehensive report after the most intense scrutiny over two years and widespread consultation on the issues raised. That committee reviewed those areas comprehensively. It was followed by the enactment of the Human Fertilisation and Embryology Act 1990. The Act was, and is, a model in its regulation of certain infertility treatments and embryo research. It reflected the need to provide a strict framework within which regulation could be conducted and to take account of the advances in medicine anticipated both by the Warnock committee and Parliament in 1990. It is surely a tribute to the noble Baroness and her committee that the Act continues to provide such a framework.
The decade following the 1990 Act, particularly in the second half, saw developments in cell nuclear replacement technology in animals, alongside the announcement in the US of the extraction of stem cells from a human embryo. That was of huge potential. It meant that in the long term it might be possible to apply the knowledge from work using stem cells made

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from both spare and cell nuclear replacement embryos to modify patients own cells so that they could be made to generate new cells and tissues. A considerable amount of laboratory work will be needed, but recent developments represent a step further towards the goal of being able to treat a whole range of degenerative diseases—Parkinson's disease, cancers and diabetes, to name but a few.
The House of Commons Science and Technology Committee recognised in 1997 what it called "the profound implications of the research" conducted at the Roslin Institute into cell nuclear replacement. Those issues were taken up early in 1998 by a joint committee comprising the Human Genetics Advisory Commission and the Human Fertilisation and Embryology Authority, which conducted a public consultation on them.
In their response to the joint committee's report, the Government announced in June 1999 that they were setting up an expert advisory group under the chairmanship of the Chief Medical Officer to consider the potential benefits for human health of such research. The expert group included representatives from a range of interests, including ethicists, scientists, doctors and geneticists. After careful deliberation, the group concluded that research on stem cells provides the possibility of exciting prospects for future therapies for a range of debilitating diseases.
While perhaps not strictly relevant to the debate on the Bill today, there have been recent discussions about the relative merits of adult and embryonic stem cell research. This is sometimes presented as an either/or debate. But the majority of scientists working in these fields acknowledge that both areas of research are necessary if the full potential is to realised. Certainly, that was the conclusion of the expert group chaired by the Chief Medical Officer.
It was the work of the Chief Medical Officer's group that paved the way for the 2001 regulations which permitted research for the following additional purposes: first, increasing knowledge about the development of embryos; secondly, increasing knowledge about serious diseases; and, thirdly, enabling any such knowledge to be applied in developing treatments for serious diseases.
The regulations do not specify cell nuclear replacement since it was the Government's view that CNR was already allowed for and regulated under the 1990 Act. That view was confirmed to the Government and to the Human Fertilisation and Embryology Authority by counsel in 1997.
Throughout that process the Government stated on many occasions that they were utterly opposed to human reproductive cloning. They also stated their intent to introduce legislation specifically to ban human reproductive cloning.
That brings me to the implications of the legal judgment of 15th November. The 1990 Act states, among other things, that embryos governed by the Act are,
"live human embryos where fertilisation is complete".
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The process of cell nuclear replacement, which leads in the normal way to a birth, clearly does not involve fertilisation. As I have said, advice to the Government was that, if challenged, the courts would look to the purpose of the Act—that is, to regulate the creation and use of embryos—rather than look literally at the words used.
It was on the basis of that advice that the Government took the view that all embryos—which have the potential to become human life—are regulated by the 1990 Act and subject to all the protective provisions in the Act and regulation by the Human Fertilisation and Embryology Authority.
The effect was that anyone who wanted to create an embryo by fertilisation or in any other way, such as by cell nuclear replacement, would require a licence from the HFEA and would have to satisfy the stringent conditions laid down in the Act. Anyone who created or used embryos without a licence would be subject to the criminal sanctions in the Act, involving a fine or imprisonment or both.
On the basis of counsel's advice, our approach to the definition of "embryo" also meant that the creation of embryos by cell nuclear replacement for research, which has enormous potential for finding cures for serious diseases, could go ahead, subject to the full rigour of regulation of such research under the 1990 Act, including licensing by the HFEA.
In the event, in his judgment of 15th November, the judge, while acknowledging that the Government had a "powerful case", decided to adopt an approach to the Act that focused on a literal interpretation of the words used rather than the overall purpose of the Act. The effect of the judgment is that embryos created other than by fertilisation are not regulated by the 1990 Act. In practical terms, that means that as the laws stands anyone may create an embryo by cell nuclear replacement and use it either for reproductive cloning or for research purposes without regulation under the Act. However, as your Lordships may be aware, the judge gave us leave to appeal against his decision. We intend to do so.
It is important to note that the judgment, while limiting the type of embryos to which the Act applied, did not affect the operation of the 1990 Act in any way; nor did it affect the Research Purposes Regulations 2001. The Act and the regulations continue fully to protect embryos created by fertilisation used in treatment and research.
In a legal case such as this the usual response is to await the outcome of the legal process before deciding on the best way forward. If the outcome proves to be in the Government's favour, all embryos, however they are created, will continue to be governed by the protective provisions in the 1990 Act and reproductive cloning will continue to be banned by the HFEA.
However, these are not usual circumstances, as yesterday's announcement from the US shows. The prospects of leaving unregulated, in the light of the judgment, the safety and ethical issues involved in bringing into the world artificially a cloned child are

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too much. That is why the Government decided to bring forward legislation to address that particular issue.
The Bill is short and focused. It makes it an offence for any person to place in a woman a human embryo, other than an embryo created by fertilisation. The offence carries with it the penalty of 10 years in prison or a fine, or both. The penalty applies to the person who places the embryo in a woman. It does not penalise the woman, although, as with many offences, the woman may be liable under the general rules of criminal law if she is an active and knowing participant.
The Bill does not use terms such as "cell nuclear replacement" or "cloning". That is because, first, such terms mean different things to different people in an area of rapidly developing science; and, secondly, because the mischief at which the Bill is aimed is to prevent anything other than fertilised embryos, using sperm and eggs, being implanted into a woman.
The additional and significant benefit of that approach arises from the fact that all embryos created by fertilisation are automatically subject to the full protection of the 1990 Act. That means that the only embryos which may be implanted into a woman are those which are subject to licensing under the Act by the Human Fertilisation and Embryology Authority. That is particularly significant in the light of the judgment of the High Court in which Mr Justice Crane said:
"it is conceded, in my view correctly, that the organism produced by cell nuclear replacement is naturally described as an 'embryo', at least when the 2 cell stage is reached. This is consistent with the expert evidence before the court".
Therefore, the only question which needs to be asked is: how was the embryo created? If the answer is "by fertilisation", the embryo may be implanted but only in accordance with a licence issued by the licensing authority. If the answer is "by means other than fertilisation", as a result of the Bill, if enacted, the embryo may not be implanted at all.
That answers one of the questions which has been asked in the past few days about what happens if a woman has only one embryo created by fertilisation and wants to create a number of further embryos from it in order to improve her chances of having a child. As the embryo has been created by fertilisation, it is subject fully to the 1990 Act and it cannot be used in any way without a licence from the HFEA. It cannot be subject to embryo splitting to create more embryos because the HFEA has said that it will not license that procedure for treatment purposes. Nor can it be cloned using cell nuclear replacement because the licensing authority has said that it will not issue licences for that purpose. Nor can it be exported because the HFEA will issue a direction allowing export only where the proposed use abroad would be legal in the United Kingdom.
As a result of that particular issue, together with a number of matters which have been raised in the past few days, it has been said that the Bill does not go wide enough and does not govern all possible use of embryos created by cell nuclear replacement. I am the
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first to say that it is not a comprehensive Bill; it is not intended to be so and nor should it be. As I said, the judgment of the High Court means that embryos created by cell nuclear replacement are not governed by the 1990 Act. As regards the key issue of human reproductive cloning, the Government's response is before your Lordships' House today. As I have also said, the Government are appealing against the High Court decision and the outcome of the legal process will then determine what further legal action will be needed in respect of the regulation of such embryos for research. I shall now turn to that issue.
I want to make it clear that the Government do not intend to ban the use of embryos created by cell nuclear replacement in essential research. The Government take the view that, given the potential importance of such research in providing considerable advances in treatment for serious diseases, the use of the embryos should be permitted but subject to strict safeguards. That policy was endorsed by Parliament earlier this year by very large majorities in both Houses after considerable debate and in the light of strong and detailed evidence from the Chief Medical Officer's expert group and others.
However, I want to make it absolutely clear that the Government recognise the concern that, should anyone seek to create embryos for cell nuclear replacement for research, the situation would remain unregulated. That will depend on the outcome of the Government's appeal and we want to wait until the end of the judicial process before taking further action. As I told the House last week in answer to a Question from the noble Lord, Lord Alton, if at the end of the legal process the Government lose their case we shall not hesitate to bring forward further legislation when parliamentary time allows to ensure that embryos created in this way are regulated in the same way as embryos created by fertilisation.
In so doing, the Government will be informed further by your Lordships' Select Committee, chaired by the right reverend Prelate the Bishop of Oxford, which was established by this House in approving the 2001 regulations to which I have referred. I have no doubt that that Select Committee will have much of importance to say on many of the matters we shall discuss today.
In conclusion, we have a process in place which allows your Lordships' House to examine and further debate these profound matters. The Bill before you today is urgent legislation. It is being introduced quickly, 11 days after the judgment on 15th November to which I referred. I make no apologies for that. Such speed reflects the concerns raised by Parliament and the public time after time about ensuring that human reproductive cloning cannot take place in the UK. That is the right and entire focus of the Bill which I commend to the House.
Moved, That the Bill he now read a second time.—(Lord Hunt of Kings Heath.)
3.17 p.m.
Baroness Knight of Collingtree: My Lords, today your Lordships are called to debate in great haste a so-called emergency. The emergency has not been caused by armed conflict, natural disaster or a collapse of the Stock Exchange. The emergency has arisen because last January the Government chose to rush through an ill-conceived and badly drafted regulation in respect of which no proper debate, no careful thought or judgment and no amendment was possible. The Government have a bad and indeed dangerous habit of preventing full debate even on the most fundamental moral and far-reaching issues, such as that so briefly before us today.
The January regulation not surprisingly proved inadequate. Has such a lesson taught the Government to allow the House to think more carefully? Alas, no. Again, we have a rushed, curtailed and unamendable measure before us. Rushed legislation and good law are bad bedfellows. And the Government cheerfully acknowledge—the Minister has done so in this House today—that there may have to be other legislation when legal appeal is heard, when the Select Committee reports, or when another crisis emerges showing that the legislation is not adequate. I suppose that whenever further flaws are revealed we shall have more legislation.
Is it really true that one rogue scientist—and an Italian one at that—has caused today's Bill? Surely the Home Secretary has powers to block the man entering Britain if he is that dangerous. Is the weight of the mighty British Parliament working flat out today to be used to crush one man's ambitions? To paraphrase Churchill: some sledgehammer, some nut.
Of course human cloning is a serious threat and must be blocked, but let us try to do so effectively. In 1994 I fought successfully against the unnatural and repugnant use of unborn female children in the name of artificial reproduction. Human cloning, whether for the birth of a child or exploiting and destroying him or her before birth in the name of science, is a terrible use of man's ability to manipulate nature. To pretend that there are two kinds of cloning, one reproductive and the other therapeutic, is incorrect. All human cloning, whether for experimentation or implanting in a womb—any womb—is reproductive.
The Government claim that this Bill bans reproductive cloning. It does no such thing. The Bill does not ban the reproduction of cloned human embryos or their implantation into animals, which is a possibility that scientists are working on even as we speak. They have already implanted human sperm in rats and rabbits. I understand that an American scientist is creating human embryos using cows' eggs. None of that would be banned by the Bill. The Bill does not ban implantation into artificial wombs, another matter that scientists have been considering and working upon. I do not believe that the Bill even bans the creation or implantation of cloned embryos created by fusing a human cell with an animal's egg. No legal decision has yet been made about whether or not such hybrid embryos would be classed as human.
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Such a hybrid has already been created in the United States. We are in an area of science which is moving very fast. The only way to stop loopholes through which so-called reproductive cloning can slip or further High Court judgments that frustrate the intentions of Parliament is to ban the immoral process of creating cloned human embryos.
The Bill does not even define its own terms. The definition of an embryo was at the heart of the victory of the ProLife Alliance at the High Court last week. Following that judgment, the Government had the opportunity to clarify the law in this Bill, but they have blown it. Do the Government have much of a clue about embryology? For years they had lots and lots of advice from every leading scientific and legal expert. What has that achieved? We have had not one but two pieces of wholly ineffective legislation. I despair.
Before the debacle last January two greatly respected and wise Members of your Lordships' House—a former Attorney-General, my noble and learned friend Lord Rawlinson, and a former chairman of the Bar, the noble Lord, Lord Brennan, who, I am delighted to see, is to speak in this debate—warned that the law did not cover cloned embryos. The same advice was given by Professor Andrew Grubb, a member of the HFEA, and a professor from the Chief Medical Officer's expert group. One would have thought that that provided ample wise advice. But the Government appear to accept advice that they like the sound of but disallow what does not really fit in with what they want. Having received that advice, the Government knew better and ignored all of it. Bless my soul, they were taken to the High Court and defeated. It serves them right. If only they would learn, but, dear me, no.
A series of amendments which would have salvaged the Bill, defining its terms and clarifying its scope as well as following Parliament's will, was carefully, thoughtfully and expertly drawn up and tabled. Alas, as has been the fate of my noble and learned friend Lord Rawlinson, the noble Lord, Lord Brennan, and all other known experts who have given their advice in the past, the amendments were rejected. Your Lordships cannot even be told what they were, why they were tabled or hear them being moved.
What about the possibility of British scientists creating cloned embryos and exporting them? Britain could easily become the source of clinics acting as cloning farms for the Antinoris of this world. On "Newsnight" last Thursday the Minister said that it was not for the Government to legislate on what might be done in other countries. That is not a view which is held by the European Community. Before someone reminds the noble Lord of that fact, let him recall the words of President Chirac of France—I hope that the Minister will take note of them because they come from an important source—that,
"Nothing will be resolved by banning certain practices in one country if scientists and doctors can simply work on them elsewhere".
The Government should keep an eye on advances being made in this field. Professor David Prentice, recognised by many Members of this House as a

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world authority on stem research, addressed parliamentarians last week. Your Lordships will be aware that stem cell research is the main justification put forward for using cloned embryos. Professor Prentice spoke of the staggering advances in ethical alternatives to embryo stem cell research. It is apparent that the past 12 months have seen enormous progress. The big question that that poses is whether embryo stem cell research is necessary. In view of everything that Professor Prentice said, one should at least stop to think about it. With the mass of new evidence that is emerging and the judgment of the High Court last week, to prevent a full and proper debate on what is arguably one of the most sublime moral issues of our time, as one newspaper leader described it last week, is a disgraceful decision by the Government. Is this really less important than fox-hunting? I would say not. But the Government, who have given—and apparently will give again—ample time for debate on that subject, clearly believe it is much more important than human cloning. Will they never learn?
3.28 p.m.
Baroness Walmsley: My Lords, we are debating today the protection of probably the most vulnerable form of human life. Yet we have been given only today to do it and to ensure that the legislation passes through all its parliamentary stages. That is to treat both this very important issue and Parliament with contempt. It is 10 months—to be precise, it was on 22nd January—since this House had the opportunity to consider the issue of human reproductive and therapeutic cloning in the debate on the Prayer against the current regulations. In that debate I and many of my noble friends on these Benches expressed opposition to human reproductive cloning alongside our support for research into therapeutic cloning.
While we supported the current regulations, we asked the Government to bring forward legislation as soon as possible to make clear that human reproductive cloning was unlawful so as not to muddy the waters in the debate about therapeutic cloning. I shall not talk about therapeutic cloning today because I do not believe that it is relevant to the subject of this debate. We were led to believe that the Government would do so, but the legislation was not mentioned in the Queen's Speech. My Front Bench colleagues protested about that at the time.
The House also voted to appoint a Select Committee to investigate the issues related to therapeutic cloning, while allowing work on therapeutic cloning to continue. One of the most damning aspects of introducing the Bill to the House today in such haste is the fact that the Select Committee was not consulted, although its report is imminent.
The Bill is also unnecessary. It would have been far better to have waited until the Select Committee report had been published, then to draft a more comprehensive Bill covering all the issues and have it properly debated in Parliament.
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The Government make a virtue of the fact that the Bill is narrowly drawn. That is one of the problems with it. It is so narrow that it gives cloned embryos only one of the four protections afforded to fertilised embryos by the 1990 Act. If the Bill is considered necessary, why is it not necessary for it to include protection from implantation in animals, export and experiment after 14 days? The Minister may say that those are already explicitly covered by the Human Fertilisation and Embryology Act. If so, so is implantation in a woman, but the problem is that the judge in the recent test case did not think so.
We therefore need to ask two questions. First, did the Government take a wide range of legal advice on whether cloned embryos were protected under current law? The fact that a senior judge takes issue with the Government's advisers, and the fact that doubts have been widely touted in the media for months, suggest that there was a clear risk that the judgment could go the way that it did. Why did not the Government take action before, cover their back and avoid having to bounce Parliament in this way? If the Government are confident that the appeal will go their way, why do they not keep their nerve now? Legislation that is reactive to events and rushed through Parliament is rarely good legislation.
The second question is: is the Bill—which comes prior to the Select Committee's report, and, it is to be hoped, subsequent legislation—necessary at all? I do not believe so. Why do we always get a knee-jerk reaction from the Government to front-page scaremongering by tabloid newspapers? Why do the Government not listen to the medical experts who are telling them that the Italian gynaecologist, Professor Antinori, oversells his ability? He may well make a lot of noise about what he can do, but, in order to achieve implantation in a woman in this country he would have to persuade doctors to help him. He would have to obtain donated eggs and break the terms of their storage licence—which is itself unlawful; or he would have to store eggs without a licence, which is also unlawful. Despite all his boasting and hot air, it is extremely doubtful that he would be able to do any such thing until we have had the chance to read and debate at appropriate length the Select Committee's report and the legislation that must arise from it
The Bill is either too little, far too late, or unnecessary. By the way, it should have been called the implantation of human reproductive clones Bill. However, as I am not in favour of human reproductive cloning, I am unlikely to vote against the Bill, just in case the Government are right and I am wrong about its necessity. The amendments tabled by the noble Lords, Lord Walton of Detchant and Lord Alton of Liverpool, are also unnecessary, but I express my vigorous protest at the way in which the Government have dragged their feet in the matter, and the way in which Parliament is now being treated.
Finally, I apologise to your Lordships, and to the Minister, that because of the last-minute nature of the debate, I may not be able to be present at its end.
3.34 p.m.
The Lord Bishop of Oxford: My Lords, I rise to speak only briefly to say that the Select Committee is on course to report by the end of the year or early in January. I am sure that your Lordships will understand that, because the amendments tabled for discussion in Committee are highly controversial and directly relevant to the committee's work and the issues that it is discussing, it would not be appropriate for me to pre-empt anything that the committee wants to say on the matter by voting on the amendments.
On the Bill itself, it is fair to report that all the witnesses whom we have questioned on reproductive cloning have been opposed to it; we have heard no witness in favour. It has been put to us that the scientific objections to reproductive cloning are currently overwhelming. It took 277 attempts to produce Dolly the sheep. It would be unthinkable to allow such a degree of experimentation on a human being. Moreover, the consequences of producing clones are not well understood. In animals, there is a high rate of malformations and premature deaths. Many clones are also excessively large.
I am sure that your Lordships will agree that the issue is not simply scientific, because it would be unethical to attempt to produce a cloned baby, given such a high risk of abnormalities. The committee has also been trying to grapple with the more difficult and teasing issue of what may be the fundamental objections to reproductive cloning, supposing that it ever became scientifically safe. We have examined and are in the process of examining arguments on human dignity, eugenic and racial purposes, genetic identity and familial and welfare considerations. I hope that the committee will be able to illuminate the debate on those difficult and teasing issues when we report.
The noble Baroness, Lady Knight, drew attention to the increasing importance of research on adult stem cells. A huge amount of exciting research on adult stem cells is underway at present, and has been since the Donaldson report and since your Lordships passed the regulation. I assure your Lordships that the Select Committee has been aware of that research from the word go; we have received a great deal of evidence in support of what adult stem cells can do. It is no exaggeration to say that that has been the prime scientific question before the committee from the outset.
I very much hope that by the end of the year, or early in January, we shall be able to offer to your Lordships a considered view on the strengths and weaknesses of the various types of therapy that we are considering, as well as of the strengths and weaknesses of various arguments about the issues that we are considering.
3.38 p.m.
Lord Brennan: My Lords, I welcome the ban on human reproductive cloning that the Bill would impose. Making a biological copy of another human being is wrong. There is no clinical, scientific, therapeutic or moral justification for human reproductive cloning.
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I have five reasons for supporting the Bill, but before I turn to them I should mention that the noble Baroness, Lady Knight, was kind enough to refer to me in her speech. I hope that she will not treat it as an unkindness on my part that I vigorously reject what I consider to be the unnecessary criticism that she made of the Government's position. The five reasons go to support a Bill which, although short, should be clear, meaningful, reasonable and thus should meet the public need.
The five reasons are as follows. First, in modern society it is very necessary to develop and maintain public confidence in science and biotechnology. Within the field covering the use of stem and adult cells for various purposes, it is natural that a primeval fear has taken hold among many people; namely, that at the hands of science they face the risk of copies being made of human beings. That is an unjustified fear, but is it not understandable? In Huxley's Brave New World, written 70 years ago, genetic engineering was a commonplace in his fictional world. Human beings were created by cloning and were mass produced. Mothers and fathers became "controllers" and "predestinators". That is what the ordinary person thinks of in that context.
In describing the need for public confidence, an American scientist put it well when he said:
"To allow human cloning would be a fateful step toward making man himself simply another one of the man-made things. Human nature becomes merely the last part of nature to succumb to the technological project which turns all of nature into raw material at man's disposal".
So the primeval fear and the intellectual commentary lead to the irresistible conclusion that cloning turns human reproduction into the manufacture of human beings. People do not want it and they do not want science to produce it.
My second reason is the need for widespread law to control the fear of human reproductive cloning. In 1997, in Denver, the G8 Summit called for a worldwide ban on the cloning of human beings. That call was echoed by many international institutions, with UNESCO among them. What was the importance of international agreement? It was to control production, storage, importation, exportation and use, on an international basis; to prevent this becoming a common fact of modern life. It was encapsulated in the European Convention on Human Rights and Biomedicine in the protocol agreed this year. Many European countries have agreed to the following:
"Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited".
That sentiment is reflected in the Bill before the House, it is reflected in United States legislation presently in Congress, it is repeated in the Australian statute as well as in that for Hong Kong. With those references, noble Lords will acknowledge the international solidarity on this objective. The law needs to be in place, both here and elsewhere.
My third reason is that there is no conceivable basis, even if one were to consider human cloning, for thinking that it is a safe process. It would enable a

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grown man to have, in effect, a twin baby son or a grown woman to give birth to a twin sister. Even if fertilisation and birth were successful, no one could vouchsafe the normality of the human being so created, its lifespan, its fertility or its resistance to disease. Much worse, no one could safely anticipate its mental health or peace of mind. However much is known about humankind now, much more has yet to be discovered. It is simply not safe.
My fourth reason is that, if the Bill is not passed quickly, there is a serious and present danger—I can assure the noble Baroness, Lady Walmsley, of this—in the form of the Italian doctor, Dr Antinori, along with his American counterpart, Zavos, who are both determined to make use of opportunities as they arise. They speak of 200 women ready to undergo a cloning implant, eight of them British. The day after the judgment was passed in the High Court, Dr Antinori was reported to have said that he wanted immediately to set up a development programme within the United Kingdom. The risk is present and it is a serious risk.
Those who seek to have a child through in vitro fertilisation do so for very genuine reasons. But to take that a step further, there are those who suffer the death of a child and who may want another exactly the same. Then there are those who, for mal à propos, want to recreate their own image. People will spend money to achieve that objective. Disabled though they may be in their thinking, and emotionally deprived, they exist. Before the United States Congress, one organisation claimed to have on its books 200 applicants ready to spend up to 200,000 dollars on producing a child by this route. That is big business. So the risk is present and it is serious: the man or woman who wants to be the leader of the march of science, perverse though it is, and the organisation that wants to make money, when combined, prey on those who want a child. That risk requires action now.
My final reason is also the most important. The Bill serves to state the legislature's belief in the sanctity of human life. That is a vital duty on the part of a legislature. When there exists the risk that the sanctity of human life may be in danger—society undermined by human reproductive cloning—immediate action is necessary. But it needs to be thoughtful action, no matter how swift the legislative process. It is important to note—I mention it chronologically, not critically—that we have had the 1990 Act of Parliament; we have had regulations, about which a dispute has arisen; we had a long adjournment before a case which ultimately went against the Government; we have this piece of legislation; we know of an appeal which may go one way or the other; and we have the potential of yet further legislation. This problem requires policy, carefully thought out and clearly stated. Human reproductive cloning is one aspect of that general policy requirement.
In the list of amendments tabled in Committee, I have put forward two, neither of which so far has been categorised either as controversial or a call on opposition. One seeks to cover the gap between
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preparatory acts and the commission of the act; namely, the creation and the keeping of non-fertilised embryos. That gap exists.
When my noble friend Lord Carter told the House the other day that the Bill was to plug a loophole, he was quite right. My amendment seeks to ensure that it is fully plugged, to cover not only the act itself but the creation of the means to complete that act.
My second amendment seeks to define "fertilisation" exactly as my noble friend the Minister has done: that is, the fertilisation by one human sperm of one female egg.
I have given my five reasons. I end by asking that in our debates we acknowledge that in this particular area there is a productive bridge between the community and science where they agree together that reproductive cloning should not be allowed. It is a happy coincidence of an ethical concept and a scientific acceptance of it. On his wall at Princeton, Albert Einstein had a notice that stated,
"Not everything that counts can be counted, and not everything that can he counted counts".
The ethical framework on this occasion is beyond the search for scientific knowledge. The Bill is welcome and should be passed.
3.51 p.m.
Baroness Warnock: My Lords, I shall be very brief. I have only two reasons to offer why it is that I welcome the Bill, although doubtless there are others.
The first reason is that the Bill—even if rather hastily—fulfils the promise made by the Government that there should be a Bill to prohibit reproductive cloning. It is in accordance with what we were promised in January and on those grounds alone it is worthy of welcome. It will prove beyond doubt the determination of both government and Parliament to outlaw human reproductive cloning. As we have heard, this will undoubtedly reassure the many people who, rationally or irrationally, feel deeply, emotionally and fearfully that human cloning must always be opposed. This fear is very deep. It expresses itself in many kinds of scientific mythology and it cannot be disregarded.
My second reason is that the passage of the Bill will have very good consequences for the reasonable debate we are promised on the findings of the Select Committee at present sitting under the chairmanship of the right reverend Prelate the Bishop of Oxford. Some of the objections to stem cell research have been based on the supposition that once therapeutic cloning was permitted, reproductive cloning would be sure to follow by the route of the dread slippery slope. If the Bill is passed, we need no longer try to answer such objections because the slippery slope will have been definitively blocked by primary legislation. We shall therefore be in a position to concentrate on the arguments based on the premise that stem cell research, and embryo stem cell research in general, is in itself intrinsically evil, however beneficial its possible consequences. I believe that our being able to

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concentrate on that fundamental issue will lead to a considerable improvement in clarity, and so I welcome the Bill.
Nevertheless, I share with others some doubts about its drafting, which seems still to leave room for a variety of interpretations. I do not intend to address the question of those doubts because I hope that they will be resolved in Committee later today.
3.55 p.m.
Lord Winston: My Lords, in rising to speak briefly in the debate, I should first declare an interest as a professor of fertility studies at Imperial College and as an employee of the Institute of Developmental and Reproductive Biology. It is perhaps relevant to the debate that for the past 20 to 25 years I have been involved in research on, first, animal embryos and more recently on human embryos. I suspect—although I am ready to be challenged—that I may be the only person in the Chamber who holds a licence to do research from the Human Fertilisation and Embryology Authority.
It is important to make one observation at the outset. There are a number of people who may well feel very offended by the kind of pejorative discussion of cloning that has taken place over some time in this community of ours in Britain. It is no exaggeration to say that there are probably 20,000 to 25,000 human clones in Britain—that is, identical twins. They have identical DNA; they, in the main, do not suffer from being clones; and I suspect that many more of them, were they to understand that we seem to disapprove of clones, might have something to say about it. It is important to make that clear. There is nothing quite so obvious about cloning—which nature does herself—which necessarily is fundamentally wrong.
Having said that, of course, I agree with every noble Lord who has spoken today that reproductive cloning is wrong. It is clearly wrong at the moment for two obvious reasons. First, it treats a human being like a commodity, which is dangerous and unacceptable. Secondly, at the present time it carries very severe risks to the individual who is cloned. That may not always be so, but certainly it is at the moment.
The problems with cell nuclear replacement are very profound indeed. First, even though there now have been reports of human eggs in the United States being produced in the cloning process with cell nuclear replacement, I take those reports with a certain grain of salt. The journal in which they have been published is not exactly a high-flying or heavyweight journal, and it may well be that many of the tests which need to be done to prove that an embryo has been cloned have not been done.
One of the key issues that we need to understand is that in producing any human embryonic cell there is grave difficulty in getting the right number of chromosomes in that cell. It is a problem that we have been observing in biology for a long time. It is true to say that most human embryos have such severe faults in their chromosomes that they would not be viable or
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capable of life in the uterus. That is a fundamental reason why it is almost certain that any attempt by Antinori, Zavos or anyone else to produce a human clone would fail.
The second problem is that we know from work in at least four species that animals which are produced by the cloning process are very frequently abnormal, as has been stated. One of the key problems appears to be a phenomenon which affects what is called genomic imprinting. Normal individuals such as ourselves inherit one set of chromosomes from one parent and one set of chromosomes from another parent. Many of the developmental genes which are key to normal development are turned on in the chromosome inherited not necessarily by the mother but by the father. In the case of a cloned animal, all the chromosomes are inherited from one individual, and so the pattern of genomic imprinting appears to be impaired. That is almost certainly the reason why, as the right reverend Prelate the Bishop of Oxford pointed out, so many of these animals are of abnormal weight. It is very likely that the growth factors, which are controlled by genomic imprinting, are certainly impaired, and that is what gives rise to these abnormalities.
Thirdly, it is likely that many other genes are also not expressed normally in most of these animals. It would be unthinkable to bring a human into the world if that human suffered from abnormalities of gene expression. That alone is a reason to ban reproductive cloning. It would be interesting to know whether, in time, some of these problems will affect therapeutic cloning. We shall have to see. Clearly, it would be of no help to produce cells for transplantation which expressed genes abnormally. That is one of the reasons why further research is needed into this whole area.
There are other reasons why I am sceptical about cloning. Not all our DNA is in the cell nucleus that is being transferred; some DNA—16,500 base pairs—is in the mitochondria, in the substance of the cell or the egg cell. Some of those fragments of DNA are possibly important in the rejection process. So it may well be that, even though we think that we have engineered a tissue that might be transplantable in the same individual who has given the nucleus, that may not be so. Much more research will be needed over many years to validate and prove that.
There is another problem with any form of cloning, therapeutic or reproductive. We can see this with regard to therapy. Anyone who donates a nucleus—for example, a sufferer from a particular disease, in the hope that the cells may then be given back to him for replacement—may reproduce the same genetic defects that caused the original disease. So there are many reasons why research in cloning technology will have to proceed extremely slowly, and with great scientific caution.
I completely agree with my noble friend the Minister that this is a very exciting area for research, which offers hundreds of thousands of people all kinds of untold potential benefit for the treatment of their disease. That is correct. But it will be a long time before

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the benefits will he seen. We must recognise that more research is needed. That is one of the reasons why I fundamentally support embryo research in this field, given that in the normal course of events human embryos so frequently go to waste.
Perhaps I may clarify a point made by the noble Baroness, Lady Knight. Everyone who speaks in this Chamber does so in good faith. However, we are sometimes prepared to listen to "expertise" which is rather less expert than it sometimes appears. Mention has been made, for example, of a Professor David Prentice. I did not hear him talk, but I have no reason to believe that he is a great expert on stem cells. Indeed, I looked him up on the Medline this week to find out who he was, and I saw that he had testified to Congress. But he has published only some four papers in the past 10 years. Only the last one, published in 1993, has much to do with stem cells, and that fairly remotely.
It is fair to say that the whole issue of whether adult stern cells or embryonic stem cells are the most appropriate remains to be seen. But it is true that almost every major developmental scientist in this country at the present time is firmly of the view that the use of embryonic stem cells seems to be the most promising area of research. That is why so many leading universities are currently investing in that field, and why the Medical Research Council has decided that it is a field in which there must be much more endeavour in this country and is now ready to support it more wholeheartedly.
Finally, perhaps I may make what might be termed a religious point. I know that noble Lords may quarrel with this, but it is my view that science—knowledge—does not have a moral dimension. If we get involved with nuclear physics, we may end up inventing an atom bomb. Equally, most of us in this Chamber will have had an X-ray at some time which has been vital to our health. On the whole, we cannot know before such knowledge is derived whether it will be used for good or for ill. As human beings we have free will. We eat from the tree of knowledge; it is up to us not only to use knowledge, but also to use discernment and wisdom.
It seems to me that we should not be banning the pursuit of knowledge. What we must do is make certain that that knowledge is used for good purposes and not for ill purposes; and to make certain that it is gained in a way that is ethically justified. That is very much the concern of all Members of this House. I believe that the Bill goes in the right direction. I support it wholeheartedly. It is a simple Bill, which will do exactly what is required. I do not think that it in any way destroys further discussion about stem cells. We look forward to the report by the Select Committee early next year.
4.6 p.m.
Lord Rix: My Lords, I do not propose to detain your Lordships for long and shall avoid the temptation to make a lengthy Second Reading speech just for the sake of hearing my own voice—which I am losing anyway—for I said most of what I have to say on the
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subject of human reproductive cloning when we debated the Human Fertilisation and Embryology Regulations 2001, on Monday 22nd January. If your Lordships can be bothered to undertake the tedious task of looking it up, my remarks appear in Hansard, Volume 621, No. 16, col. 78. They illustrate why I shall be supporting the Government today in their efforts to offset the problems caused by the judgment of the High Court on 15th November, as well as yesterday's surprise announcement from Advanced Cell Technology in Massachusetts.
On wider issues, as has been stated by the Minister, we await the recommendations of the House of Lords Select Committee and the result of the government appeal against the High Court decision, before deciding whether these need to be addressed.
We cannot walk on by if it may become possible to eliminate the distressing symptoms of dementia and loss of memory; if we can help people suffer a little less pain, loss of function and restriction of activity; if Parkinson's, Huntington's and Alzheimer's become diseases of the past—and, speaking personally as the father of a daughter with Down's syndrome and the grandfather of a grandson with Down's syndrome, if the early ageing process in many people with Down's syndrome is somehow halted. Being a good Samaritan is not only legitimate, but necessary. Being arrogant enough to want to design and custom build human beings is neither legitimate nor necessary. We can stop that happening in this country; and since we can, we should. Therefore, without hesitation, I shall support the Bill.
4.8 p.m.
Baroness Gould of Potternewton: My Lords, it has been made clear in the debate that there is universal condemnation of human reproductive cloning, which extends beyond the moral and ethical boundaries that I am prepared to accept. It was clearly important for the Government to respond quickly to plug the loophole in UK law; namely, that embryos created other than by fertilisation are not regulated by the Human Fertilisation and Embryology Act 1990. It appears that part of the reason for the urgency was that we had to address public concerns and to make sure that we did not, as my noble friend Lord Brennan said, remove public confidence in science.
In introducing the debate, my noble friend the Minister said that the judgment, while limiting the scope of the definition of "embryo", does not affect the 1990 Act in any way; nor does it affect the Research Purposes Regulations 2000. I also believe that the Government are right not to include therapeutic cloning in the Bill—a point to which I shall return.
Unlike some noble Lords, I genuinely believe that the Government and everyone who provided legal advice to them thought in good faith that human reproductive cloning had been outlawed by the 1990 Act and that the regulatory authority had the power to refuse any licence to people engaged in cloning. While the regulations did not in themselves allow the creation of cloned embryos for research purposes, it was

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believed that CNR embryos were already allowed and regulated under the purpose of the 1990 Act. Mr Justice Crane took a more literal view, restricting the definition of embryos. No doubt that is an outcome of the dramatic advances that have been made in genetic science in the past 10 years.
It is argued that reproductive cloning might be the only way in which some people are able to have a child. However, there are severe ethical, legal, scientific and political problems in allowing reproductive cloning as a treatment for infertility. Putting aside the moral unacceptability, such cloning, as we have already heard, is a highly dangerous procedure. Dolly the sheep was the only clone out of 273 attempts. Professor Ian Wilmut, who created Dolly, has warned that the process of cloning causes subtle errors in the way that the genes function and that random errors and problems can occur genetically on the way. He reiterated that view in today's Daily Telegraph, responding to the research that has been carried out in the USA.
The cloned sheep Dolly appears to be sterile and ageing rapidly. Dr Harry Griffin, the assistant director of science at the Roslin Institute, has warned that, although cattle, pigs and mice have been cloned as well as sheep, the process has not been repeated successfully in our near relative, the monkey.
As a result, Dr Griffin has made it clear that any attempt to clone a child would be wholly irresponsible, given the abundant evidence that present cloning techniques are inefficient and unsafe. As a lay person, I found fascinating the explanation by my noble friend Lord Winston of the reasons for that.
The Italian gynaecologist Dr Antinori does not share the view that the techniques are inefficient and unsafe. There has been some debate as to whether he could achieve what he wants in this country. He has said that he expects to be able to do it in a few months, because he has the families and the ability to do it, and that he wants to descend on this country for that purpose, as Britain has the best laboratories and technology available. I do not care whether he is a maverick or whether he is being realistic about what he can do; I am not prepared to take the risk. As my noble friend Lord Brennan said, that risk is real and serious.
Most people recognise the special and sacred nature of human life. I have elaborated on the problems of human reproductive cloning because the issue has been dealt with far too flippantly by some in the media. As the debate shows, this is a very serious subject. I wish that the media would realise that and treat it with the seriousness that it deserves.
Unlike the noble Baroness, Lady Walmsley, I wish to mention human therapeutic cloning, although only briefly. The Care organisation, which has communicated with all noble Lords, has called for all types of cloning to cease immediately until after the Select Committee on Stem Cell Research reports its findings. That would reverse the regulations that your Lordships' House debated in some detail and at some length earlier this year, establishing that Select
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Committee. The case for human embryo stem cell research is unchanged, subject to strong safeguards, as my noble friend the Minister said. The potential benefits of such research, together with parallel research on adult stem cells, must not be hampered by the ruling. The work must continue, under a strict regulatory scheme.
To take any other course of action would be an injustice to all those suffering from degenerative diseases—diabetes, Alzheimer's, Parkinson's, Huntington's and multiple sclerosis—even though it may be many years before solutions are found. Each day matters for those who are waiting for help to achieve a more dignified and healthier future. It would be a great disappointment to those people if such research were unnecessarily delayed.
However, the High Court judgment underlines the need for regulations and legislation to keep pace with scientific developments. It is very important that there should be a continual examination of the regulations, the legislation, the guidance and the rules under which research is conducted to ensure that the rules that we adopt do not lag behind the scientists.
The Bill is necessary so that the abhorrent and morally repugnant concept of human reproductive cloning is effectively banned. I sincerely hope that every Member of your Lordships' House will vote for it.
4.16 p.m.
Lord Alton of Liverpool: My Lords, like the noble Baroness, Lady Gould, I support the Bill so far as it goes in outlawing reproductive cloning. I argued for that during the debate in January. I welcome the initiative that the Government have come forward with, although I wish that it had happened in January and that we could implement a comprehensive ban on all forms of human cloning. The developments in the United States in the past 24 hours show how fast events are moving and the importance of taking international action to deal with these issues. None of us can have a fortress mentality on these questions. We have to do what we can to facilitate international agreement.
The noble Lord, Lord Winston, will not be surprised that I disagree with his statement that science does not have a moral dimension. We would not be considering these questions today if science did not have a moral dimension. There would be no need for any regulatory framework or any system of jurisprudence or law. Everything that society's values are based on points to the need for a moral and ethical framework.
However, I agree with the noble Lord that we should properly draw a distinction between natural twinning and artificial cloning. He pointed to the tendency of the latter to lead towards the debasing of life through what is described as commodification—a word used by the former Archbishop of York, the noble Lord, Lord Habgood, in a letter to The Times. If that is so for reproductive cloning, how much more does therapeutic cloning lead to the commodification of life? In that process, we deliberately create a human embryo, disembowel it, take from it what we want and

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then throw it away. That raises profound questions of the sort that the Minister said we should debate and discuss on this Bill and when the right reverend Prelate's Select Committee reports to us.
If these are profoundly important issues, as the Minister said, we are right, as the noble Baroness, Lady Walmsley, said, to consider the modus operandi with which we are dealing with such important questions. The Minister talked about the huge potential of the human embryo. Since 1990, when the original legislation was passed, more than 300,000 human embryos have been destroyed or experimented on. In a curious way, the noble Lord's argument makes my point for me. If an embryo has such huge potential, even within the first 14 days of its creation, to provide a donation with life-enhancing opportunities for others, what does that say about the uniqueness and importance of that new life that has been created?
The Minister talked about this not being an either/ or debate about embryonic cells versus adult stem cells. I well recall the contribution made by the right reverend Prelate the Bishop of Oxford during our debate last January, however, when he rightly told us that if other means were available that avoided the need to create embryonic stem cells for the purpose of experimentation, we were duty-bound to investigate them. Indeed, even in the regulations it does say that if other means are available then we must not proceed with the creation of embryonic stem cells. This holds out great hope for me that there may be common ground in your Lordships' House. Again, the noble Lord, Lord Winston, pointed to these possibilities in his remarks about the use of adult stem cells.
There are arguments for and against on both sides. I was pleased to hear what the right reverend Prelate said to us earlier about the thoroughgoing way in which those questions would be investigated and reported upon by his committee. Having appeared before the Select Committee last week with Professor David Prentice from the United States, but also with Professor Neil Scolding from Bristol Frenchay Hospital and Dr Michael Antoniou from Guy's Hospital—some of the foremost authorities on these questions and some of them involved in clinical practice—Professor Prentice told the Select Committee that dozens and dozens of pieces of research and evidence have now been produced which illustrate, since our debate last January, the better use of adult stem cells in therapeutic processes over and above the use of embryonic stem cells. I shall return to that question later in my remarks.
Perhaps I may briefly recall something else which the Minister said in his opening remarks. He said that the Government will not ban experimental cloning. This makes something of a mockery of the process of having a Select Committee at all. If, for instance, the Select Committee were to report that we do not need to use embryonic stem cells and that they are inherently unstable and carry dangers—the point Professor Prentice made to the Select Committee last week—is he saying that the Government will then disregard its findings?
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I am grateful to the Minister. He is shaking his head and saying that the Government would not do that. It is important for the House to know that, because one of the concerns I had about the creation of a retrospective Select Committee was that we were invited in January to approve orders and then to create a Select Committee with no clear understanding of how its findings would then be viewed by the Government.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for giving way. I think I said at our debate in January, and I certainly repeat it, that the Government would of course need to take account very seriously of the recommendations made by your Lordships' Select Committee. The debate today and what has been happening in the last two or three weeks make that even more imperative.
Lord Alton of Liverpool: My Lords, I appreciate that clarification, because that does open up the possibility of some common ground being found in different parts of your Lordships' House.
In January the Minister said to the House that there were no new fundamental issues raised by the regulations which had been placed before us, and the Government told us that CNR—cell nuclear replacement—was lawful. Clearly those two assertions have been disproved in the High Court. The noble Lord, Lord Winston, said to us during that same debate that,
"there is not the slightest possibility of human clones".—[Official Report, 22/1/01; col. 100.]
Clearly the events of the last 24 hours demonstrate that things have been moving very fast in this debate. To make legislation as we proceed, as it were on the hoof, may therefore not he the best way of dealing with things.
The Government's eagerness to dispense with detailed scrutiny, transparency and proper parliamentary opposition does seem to be undimmed. As the noble Lord, Lord Roper, alluded to in the debate on 21st November, the Bill has been drafted in such a way as to avoid substantive amendments. Therefore, the exclusion of the implantation of a cloned human embryo into an animal, into artificial wombs, even into men, or the sale or exportation of cloned human embryos, are not dealt with in this Bill, and it is impossible, as the noble Baroness, Lady Knight, said earlier, to bring amendments in order to deal with those omissions.
The Government do not appear to have learnt any lessons from January. They have adopted a conveyor-belt approach to legislation. In an age when politicians are seeking to arrest growing public apathy towards parliamentary politics and the lack of public confidence in our democratic procedures, the Government's approach is wholly counterproductive. My noble friend Lady Warnock said in the debate in January that the Government were shovelling through the unamendable regulations and she said elsewhere that there was an element of bullying involved.

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The legitimacy of the consultation process has therefore been seriously undermined and does nothing to assuage the concerns raised by the Select Committee of your Lordships' House that looks at science and technology, which said that the ethical debate and scientific debate are out of sequence and that public opinion is therefore being alienated. They said that "science's relationship with United Kingdom society is under strain".
Looking at the Bill itself, in banning live birth cloning it deals with only one aspect of Mr Justice Crane's recent High Court judgement. In a letter to Members of your Lordships' House dated 22nd November, the Minister wrote, "We must legislate urgently to ban human reproductive cloning". Yet the Bill does nothing to stop the creation of a human clone. As the noble Lord, Lord Brennan, pointed out in his admirable remarks, it merely prohibits the transfer of a cloned human embryo into a woman.
Up until last week, the Government had indicated that, despite the warnings from myself and others that the 2001 regulations were legally flawed, there was no rush to place a ban on live birth cloning on a statutory footing. As the Minister informed this House in July,
"we recognise and share the concerns of many people about human reproductive cloning. However, that cannot be carried out in the UK. … We have stated our clear intention to introduce primary legislation to put this ban on a statutory footing as soon as parliamentary time allows".—[Official Report, 4/7/01: col. 816]
It would appear, however, as others, including the noble Baroness, Lady Gould, have said, that because Severino Antinori had appeared on the scene this spurred the Government into action. The explanatory note to the Bill states,
"This Bill fulfils the Government's commitment to bring in legislation to put the ban on human reproductive cloning onto a statutory footing. It is brought forward following the judgement of the High Court on 15th November 2001."
In other words, the Bill is a response to the High Court finding, not a response to Severino Antinori. In that sense, we must judge it against the High Court judgment and not just against Antinori. Having sought advice from the Library of your Lordships' House, I was told:
"In response to your recent enquiry I am advised by the Home Office (Immigration and Nationality Directorate) that the Secretary of State is able to exclude a person from entering the UK under his general powers to regulate the entry of people into the UK. These powers are set out in ss. 1-4 of the Immigration Act 1971 (… which gives the current text, i.e. as amended by subsequent legislation). Section 3(5)(a) gives the Secretary of State power to deport a person from the UK if he deems it 'to be conducive to the public good'."
In other words, if we simply wanted to stop Antinori from entering the United Kingdom, the provision is already there without an Act of Parliament. I might add, however, that if he were to come here and carry out the procedures that he is suggesting, due to the serious medical risks inherent in live birth cloning—a point referred to by the noble Baroness, Lady Gould—any doctor who carried out such a procedure would not be acting ethically, could be subject to GMC censure, and could even find himself or herself facing possible criminal assault charges.
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More importantly, if the Government are so concerned about the prospects of scientists coming here to practise live birth cloning, the safest thing to do would be to prohibit human cloning in all its forms, not just the implantation of cloned embryos in women, at least until the Select Committee on stem cell research has submitted its recommendations and Parliament has a proper opportunity to debate these issues.
The Bill's failure to prohibit human cloning in all its forms is not its only flaw, however. The Bill fails to outlaw the transfer of a cloned human embryo to an animal, unlike Section 3(3) of the Human Fertilisation and Embryology Act 1990 which does specifically prohibit the transfer of a non-cloned human embryo to an animal.
The spectre of animal-human hybrids is an increasingly real one. There are now at least three groups that have created animal-human hybrids from animal eggs and human nuclei. There are patent applications to cover this and many other similar forms of animal-human hybrid. There is also a patent application to create animal-human chimeras, which could be part or virtually total clones, and take them into animal wombs.
As drafted, the Bill does nothing to stop cloned animal-human embryos, first from being developed beyond the 14-day stage either in culture or in vivo; secondly, from being implanted into a woman, as they are not "embryos" according to the Human Fertilisation and Embryology Act 1990, and, thirdly, from being implanted into an animal. In addition, if embryonic stem cells derived via experimental cloning were multiplied up and used as the donor nuclei, large numbers of clones could be produced.
The Donaldson committee recommendation number six stated that,
"The mixing of human adult (somatic) cells with the live eggs of any animal species should not be permitted".
The Government have been keen to follow many other aspects of the Donaldson report and I shall be grateful if the Minister, when he comes to reply, can explain why that particular recommendation was overlooked.
The Bill also fails to prohibit the transfer of a cloned human embryo to a man or to an artificial womb. Lest your Lordships think I am simply being mischievous, in 1999 the noble Lord, Lord Winston, argued,
"Male pregnancy would certainly be possible and would be the same as when a woman has an ectopic pregnancy—outside the uterus—although to sustain it, you'd have to give the man lots of female hormones".
That opinion was later backed up by Dr Simon Fishel, director of the Centre for Assisted Reproduction in Nottingham, who said,
"there is no reason why a man could not carry a child".
The Bill also criminalises women who, for one reason or another, are implanted with a cloned human embryo. That is an issue with which I hope the Minister intends to deal. I sought to tackle it by tabling an amendment to which we will come in Committee. But if a woman, through no fault of her own, was implanted in an IVF centre and did not know what the

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nature of the embryo was, she could be subject to the 10-year prison sentence and fine contained in the Bill. Or she may have had a change of mind, having first been fertilised and later on changing her decision.
Another glaring omission from the Bill is its failure in defining the principal terms used, including what is meant by "human embryo" or "fertilisation". Those are not defined in the Human Fertilisation and Embryology Act. The Government overlooked the full significance, therefore, of Mr Justice Crane's High Court judgment and the scientific advances in this field which render many procedures outside the regulatory scope of the HEE Act and the Human Fertilisation and Embryology Authority. Parliament deserves a proper opportunity to think again about the law in this area but this rushed legislation squanders that opportunity.
Looking for a moment at the international perspective, the Bill fails to meet our obligations under Articles 2 and 14 (to be read in conjunction with Article 2) of the European Convention on Human Rights in that it permits a category of human life to be created that is destined for destruction through research and experimentation. Again, I hope that when the Minister replies he will clarify on what basis the compatibility statement has been signed on the face of the Bill. Furthermore, why does the Bill fail to set out the process for prosecution of the offence in Scotland?
As your Lordships can see, the Bill is flawed. The Government have not properly thought it through. We legislate in haste and repent at leisure. It compounds the mistakes made by the Department of Health in January and it would have been far more prudent to introduce a comprehensive Bill forbidding human cloning in all its forms.
It is also unnecessary to create cloned human embryos so as to extract their stem cells for use in clinical research and treatments. Astonishing progress is being made, as the right reverend Prelate said earlier, in the way in which diseases and conditions can be treated using adult stem cells. That stands in marked contrast to the absence of progress using embryonic stem cells. Last week, in the evidence heard by the Select Committee, it was stated that there had been no clinical treatments involving embryonic stem cells and that there had been few successes in animal models; that they are difficult to obtain as pure culture in the dish; that they are difficult to establish and maintain; that there are problems of immune rejection; that there is a potential for tumour formation; and that there is generic instability.
By comparison, adult stem cells avoid those problems with transplant rejection. Also avoided are the growing public health risks being demonstrated with embryonic stem cells. The serious and unpredictable medical risks include teratoma and teratocarcinoma formation (including hidden abnormalities) and the tendency towards unregulated growth. Those who, like the noble Lord, Lord Hunt, in last week's debate, speak of the "potential" of adult stem cells, should examine the current clinical
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applications of adult stem cells and contrast that with the dearth of clinical applications for embryonic stem cells. In addition, those noble Lords who endorse the view of the committee of my noble friend Lady Warnock, that the embryo has a "special status", might like to reflect on the points I made earlier.
To conclude, while I support the prohibition of live cloning, the Government have failed to learn from their mistakes, railroading rushed and flawed legislation through Parliament. Restricting the ability of Members of both Houses to amend such legislation is dangerous from a medical-scientific perspective, and also from a procedural perspective. It demonstrates a contempt for the scrutinising role of Parliament. It subverts Parliament. Cloning human beings also carries awesome consequences for humanity.
This Bill fails to outlaw many practices that are repulsive and abhorrent. It will not create settled law but exhibits all the faults which have characterised the Government's earlier attempts at regulation. The prospect is that we will be back again on a regular basis every time someone like Severino Antinori comes up with an odious idea. How much better it would have been if we had worked with the grain of international opinion instead of pandering to the vested interests of the biotech industry. Only last week the European Parliament outlawed any funding, either for reproductive or therapeutic cloning. Almost all of our European neighbours share that view and the American Congress, by a majority of 100, outlawed the use of cloning for experimental purposes. We should have done the same.
4.36 p.m.
The Lord Bishop of St Albans: My Lords, I am very aware that the dilemma in which we find ourselves today consists of legal, political and moral elements. As a bishop I do not necessarily have the competence to comment on the legal and political areas of this debate. But I should like, if I may, to express some concern about what I see as one of the moral dimensions.
I suppose one of the definitions of what makes a work of art "great", is that in its presence we experience what can only be described as a "shudder of recognition". It shakes us to our foundations, intellectually, emotionally and spiritually, and makes us reassess what life's purpose might be. For instance, I think of seeing Epstein's "Jacob wrestling with the angel" at the Tate Britain, or of listening to Bach's "B Minor". I get that same "shudder of recognition" when I come across a line of poetry that stops me in my tracks. For example, I think of St Augustine's yearning cry that echoes down the centuries:
"Late have I loved thee, beauty so old and so new, late have I loved thee".
The "shudder of recognition" that those works of art elicit comes from an awareness deep within our souls that in their presence we are on the threshold of absolute beauty and absolute truth. We have to take our shoes from off our feet because the ground on which we stand is holy.

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Those "shudders of recognition" can occur at the other end of the human scale; for instance, when we encounter appalling cruelty. The shudder then is a recognition of an existential abyss into which any of us can topple, either individually or collectively. There are other moments too when we experience the "shudder of recognition"; for example, when a moral issue seems so massive and so far-reaching that one can only approach it with patient awe.
I was present in the House for our debate on cloning in January and recall how strong was my sense that some of us were in too much of a hurry, too eager, too caught up in the heady delights of progress to be able to give our attention to the full implications of what we were debating. But today we are in an even greater hurry. Of course, I agree that the perceived loophole, if it exists, must be closed with extreme urgency. But our very haste, I venture to suggest, is a signal that we lack genuine clarity about the legal, political and moral implications of what we are doing in this entire cloning area. That may be due to three reasons.
First, we may have made too easy and too neat a distinction between therapeutic cloning and reproductive cloning. Who can possibly be against anything described as therapeutic? But is it not possible to imagine a situation in which a couple or an individual seek reproductive cloning on what they would genuinely call therapeutic grounds?
Secondly, we may be in too much haste and there is lack of clarity as we have ignored the fact that basic human characteristics such as greed or, less obviously but more potently, the lust for power, can be found as much in areas of medical research as in any company boardroom or, come to that, in any cathedral close.
Thirdly, we have become so seduced by our technological skills that the moral enormity of what we are doing and the sheer scale of our audacity have dwarfed and threaten to silence conscience, wisdom and that collective sensibility which alone ensure genuine moral freedom. I believe, however, that in this debate and in our nation there is a "shudder of recognition" that human reproductive cloning is inherently and absolutely wrong and must be prevented at all costs.
I believe that we shall do ourselves, our nation and the future no favours if we fail to realise that that "shudder of recognition" over human reproductive cloning must make us raise further questions about all kinds of cloning. What I hope we can create this day is a Bill which clearly and unequivocally forbids and prevents all reproductive human cloning in this country. But I also look for—and I am sure I shall be given a cast-iron assurance that when the Select Committee reports enough time will be allowed for a debate here and throughout our nation so that our moral sensibilities about the whole issue of cloning may be refined rather than be bludgeoned into submission by those with the political, technological or financial power to do so and who sometimes seem to regard what I have called "shudders of recognition"
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as merely the over-excited reactions of our central nervous systems rather than gateways into the absolute which is at the heart of all things.
4.43 p.m.
Lord Walton of Detchant: My Lords, when I first joined your Lordships' House in 1989 my baptism of fire, as it were, was my involvement in debates on the Human Fertilisation and Embryology Bill, as it then was. That Bill eventually became an Act with large majorities in both Houses of Parliament. Since that time it has been legal, under licence from the Human Fertilisation and Embryology Authority, to carry out experiments on human embryos up to 14 days after fertilisation. I think I can speak with authority in saying that that responsibility of awarding licences to only high quality research has been well fulfilled by that authority since that time.
That particular Act made it clear that such research would be involved only in, first, improving methods of human fertilisation and, secondly, in the prevention of human disability and disease. It did not include within its terms of reference the treatment of disease. But it did specifically preclude cross-species fertilisation, transfer of gametes and a number of other processes such as embryo splitting.
Today we are not debating the issues which were considered in depth during a lengthy debate in January on the regulations introduced by the Government in order to amend that Act to make possible developments of crucial importance in the treatment of human disease. Those procedures involved the use of spare human embryos, which became spare during processes of in vitro fertilisation, as a source of embryonic stem cells. During that debate we also considered the process of cell nuclear transfer not only for the creation of embryos but also for the prevention of mitochondrial disease.
Those are not issues which we are considering today as they are before the Select Committee of your Lordships' House chaired by the right reverend Prelate the Bishop of Oxford. I have no doubt whatever that the Government will make adequate time available to consider the recommendations of that Select Committee when the time arises. Today we are concerned solely with the question of whether this House should pass a Bill to proscribe, to ban and to make illegal reproductive cloning, rather than therapeutic cloning which relates to the use of stem cells derived from embryos created by nuclear transfer. Like my noble friend Lord Alton, I wholly agree—as the noble Baroness, Lady Warnock, stated in her original report—that the human embryo must be treated with great respect. However, I disagree with him when he talks of the killing, discarding or degeneration of human embryos, bearing in mind the fact that millions of fertilised ova and human embryos which never implant in the wall of the uterus are flushed down the toilet every day in the course of normal human fertilisation.
But let me return to the primary purpose of the Bill which is to ban the process of cloning of a human embryo by cell nuclear transfer and its subsequent

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implanting in the uterus of a woman. That is the sole purpose of the Bill. Many powerful speeches have been made today on both sides of the House. I particularly refer to the powerful speeches of the noble Lords, Lord Brennan and Lord Winston. I strongly agree with the views that have been expressed. I believe that the process of attempting to clone an identical human being is not only morally but also ethically repugnant. For that reason the objectives underlying the Bill are ones which I wholly support.
But equally I could not support any attempt to extend the Bill to therapeutic cloning produced by cell nuclear transplantation. I agree that there are problems in that field, but, as many other noble Lords have said this afternoon, the hopes that may arise for the treatment of diseases from the development of stem cells from such a source are huge. However, as the noble Lord, Lord Winston, said, the problem of genomic imprinting, the fact that it took 277 attempts before Dolly the sheep could be cloned and the problem that such a process might well lead to major abnormalities in the foetus or in the individual so produced are so huge that reproductive cloning must be banned. In the meantime work on therapeutic cloning has to be carefully examined by research workers and carefully controlled. I have no doubt that this issue will he examined in the report of the stem cell committee chaired, as I said, by the right reverend Prelate the Bishop of Oxford.
Adult stem cells provide a considerable prospect for research in the future, but all the scientists to whom I have spoken who are deeply involved in this research are absolutely confident that at the moment the flexibility and potential of adult stem cells is considerably less than that of embryonic stem cells.
In an attempt to try to overcome a problem that I saw in relation to this Bill as it stands, I tabled an amendment that we shall have an opportunity to discuss later today. A gamete is a reproductive cell; the male gamete is the sperm and the female gamete is the ovum. When the two are combined they form a zygote, which is an embryo. The difficulty that I saw related to the legal judgment in the High Court on 15th November, in which the judge concluded that an embryo produced by cell nuclear transplantation was not an embryo in accordance with the terms of the 1990 Act. However, I have now learnt that that particular conclusion of mine was not correct because the judge referred solely to embryos produced by fertilisation and did not refer to an embryo produced by cell nuclear transplantation.
My amendment attempts to define the embryo relating to this particular Bill as a female gamete modified by nuclear transplantation. However, since tabling the amendment I have realised that there are means other than nuclear transplantation whereby in the future embryos may be created. One that is emerging as a result of animal research is so-called parthenogenetic production of embryos from which stern cells can he produced through various methods of manipulation of the female ovum. Therefore, my
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amendment would not meet that particular objection, so at the appropriate time in Committee stage I shall not move it.
I believe that this Bill, short though it is, is one that we in this House must support. It is crucial that we should ban reproductive cloning. Although the wording of the Bill is brief, I believe that it is sufficient to cover and to include all presently known and presently predicted processes of so-called reproductive cloning; for example, the production of identical human beings. For that reason I warmly commend the Bill to the House.
4.52 p.m.
Lord Rea: My Lords, like the Bill I shall be brief. My noble friend has explained its single purpose which again has been clearly outlined by my noble friend Lord Walton: that is, to stop—I was going to say embryos but perhaps I should say early humans, although people may say that they are not humans yet until a primitive streak is laid down—early human creations that are formed by cell nuclear transfer, being implanted in a woman's uterus with the implied intention of allowing that embryo to develop into a human foetus and infant. The dangers have been fully outlined by my noble friend Lord Winston and to some extent also by my noble friend Lord Walton.
On the other hand, an embryo produced by fertilisation of an ovum by a spermatozoon can still be implanted but, of course, it would be subject to all the regulations and requirements of the Human Fertilisation and Embryology Act 1990, supplemented by the Research Purposes Regulations laid down earlier this year and overseen by the Human Fertilisation and Embryology Authority (HFEA) as my noble friend Lord Walton has outlined.
The need for this short Bill to he given an accelerated passage through your Lordships' House is the judgment of the High Court 11 days ago. That judgment brought to light a loophole in the legislation that would allow human reproductive cloning to be attempted by doubtful enthusiasts, such as Professor Severino Antinori, who, shortly after the court's decision, announced his intention to head for Britain soon to set up a clinic. The noble Baroness, Lady Walmsley, may be right in saying that he could not possibly set up that clinic before the Select Committee of your Lordships' House has reported nor before other legislation has been considered that may arise from that report. However, as she admitted, she could be wrong and it would be wrong of the Government to take such a risk.
This simple Bill has one purpose, which is to stop such activities. It is, of course, possible that further legislation may be necessary after the Select Committee has reported, and possibly after the Government's appeal has been heard. As science develops and new techniques become possible, further legislation may be required. That may answer some of the fears of the noble Lord, Lord Alton.
Today's news of the creation of a cloned human pre-embryo—consisting so far of only six cells—by the privately financed biotech company, Advanced Cell

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Technology, in Worcester, Massachusetts accentuates the need for this Bill, although in this case the scientists concerned state that they have no intention of implanting that particular embryo to allow full development—I am again probably mis-naming the cells as an embryo.
It would be wrong to delay or to extend the scope of the Bill, which is quite specific and urgent. With respect to noble Lords who have laid down amendments, I believe that my noble friend will be able to reassure them that they are not necessary, so that this Bill can go through, unamended, to the other place. I support the Bill and hope that it has a speedy passage.
4.57 p.m.
Lord Patel: My Lords, like the Bill, I too shall be short and precise. Unfortunately, some statements have been made on which I feel a need to comment. I strongly support the Bill. I believe that it is timely, appropriate and proportionate. Reproductive cloning is wrong for all kinds of reasons which I shall not rehearse again as they have been addressed already by the noble Lords, Lord Brennan and Lord Winston.
The Bill prevents the implanting into a woman of an embryo that has been created by a means other than fertilisation of gametes. Therefore, I believe that it is all encompassing, which is right. I was pleased to hear my noble friend Lord Walton of Detchant suggest that his amendment may not be correct.
However, the Bill does not prevent the very necessary research on stem cells—adult and embryonic—including on embryonic stem cells following cell nuclear replacement, or genomic transfer. I believe that is also right. Unlike my colleague the noble Lord, Lord Winston, I am not associated with any stem cell research, but I chair the Medical Research Council's Genetic Advisory Committee, so I am familiar with the current state of stem cell research.
The debate today is not about research, but about principles—about whether human reproductive cloning should be allowed. No serious scientist wants to see that happen; neither, I believe, does the wider society. The other side of the debate is whether it is morally and ethically right to permit any research on very early embryos obtained following fertilisation or following cell nuclear replacement technology.
I respect those views but serious scientists working in this area are clear: research on embryonic stem cells holds the greatest promise of delivering treatments for very serious diseases, including congenital abnormalities, degenerative diseases, endocrine diseases, cancers and others. I also believe that the majority of the public and those organisations which represent patients understand and approve the need for such research, especially in a regulated and controlled environment.
We can discuss whether or not research in adult stem cells has progressed to a stage where embryonic stem cell research is necessary. So far, it clearly has not. The research is very preliminary and is not that promising. Adult stem cells are older and, therefore, have shorter
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life spans. They require manipulation in order to extend their life. They have limited specialisation. They are already in organs and cannot easily be turned into other cell types. Also, they can be obtained only in small numbers. Half an adult brain would be required in order to gather sufficient neuronal stem cells.
Despite those limitations, adult stem cell research must continue. The ultimate goal should he the ability to use adult stem cells for all cell types. We should aim to reach the stage where we dedifferentiate adult cells so that they have the potential to behave like embryonic stem cells and are able to form all cell types. That is the aim, but how shall we learn to do that? We shall do so only if we continue the fruitful research on embryonic stem cells.
Unlike that relating to adult stem cells, embryonic cell research is more recent and therefore less is known about it. Adult stem cell research is nearly two decades old. Despite that, we have learned much from animal embryonic stem cell research, mainly from experiments on mice but also from those on other animals. Unlike adult stem cells, embryonic stem cells can form over 200 cell types. They exist in large numbers. In fact, they can probably form all cell types in the body. They can form the biological cell types of entire organs. They are at the headwaters of development and are capable of making every cell type downstream. Embryonic stem cell research is the only means of understanding cell differentiation. That is why we should allow it to take place.
I turn briefly to the subject of cell nuclear transfer and genomic replacement. I shall set out why I believe that it is necessary to allow such research to continue at present. One of the key reasons—there are others—why there is a need to allow research on embryos following cell nuclear transfer is to understand the mechanisms involved in tissue rejection and to solve the problems of immune matching. Therein will lie our ability to conduct stem cell replacement treatment without patients having to take immuno-suppressive drugs for the rest of their lives, with the obvious consequences that ensue from that.
It is clear that all stem cell research—adult and embryonic—is necessary. I support the Bill and I hope that the House will pass it swiftly.
5.4 p.m.
Lord Turnberg: My Lords, I hope that your Lordships will forgive my continuing this onslaught by doctors—I see that I am the fourth in line. Since 1990 the Human Fertilisation and Embryology Authority has carried out its work impeccably. It has strictly regulated and licensed what research can be done and how it should be done. During the whole of that time it has drawn no criticisms that it, or the medical scientists who are carrying out the research, has behaved improperly.
The facility to control research on human embryos has become the envy of the world as other countries try to grapple with the ethical and scientific dilemmas posed by advances in the bio-sciences. I am sure that

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that has something to do with the confidence that your Lordships had in extending earlier this year the reasons why research on human embryos could be performed to include stem cell research for adult diseases.
It is the case that any researcher foolhardy enough to seek a licence to undertake reproductive cloning in the UK would have been turned down at any time during the history of the HFEA. If researchers had persisted in doing so without a licence, they would have committed a criminal act. The Government said that they intended to strengthen the legislation in this area. However, in its wisdom, the High Court has ruled that a cloned embryo is not an embryo so far as concerns the HFEA, and it has left a loophole which needs to be closed. It is obvious that the prohibition of human reproductive cloning has the support of the whole House. I echo the wise words of my noble friend Lord Winston about the dangers of human reproductive cloning and the time-scale involved in terms of its advances.
However, we should not now be using this opportunity to revisit the whole debate about research on human embryos in general and on stem cells in particular. The case for embryonic stem cell research remains the same as it was early this year; namely, carrying out research which has the potential to give relief to sufferers from a wide variety of diseases while, at the same time, preserving the special dignity that must be afforded to human embryos by close regulation within a clear legal framework.
That, I believe, is what we achieved with the Human Fertilisation and Embryology Act and what, I hope, the Select Committee will endorse. Once we move away from a clear-cut ban on reproductive cloning, we move into very unclear waters. For example—perhaps noble Lords will forgive me if I become a little biological here—we know that every nucleus in every cell of the human body carries a copy of all the genes which are necessary to reproduce that individual. Stem cells, whether derived from adults or from embryos, can and do transmit their characteristics to their cellular offspring. Viewed in that light, stem cells formed from an adult nucleus, whether that nucleus has been transplanted into an empty egg cell or simply from the adult cell itself, have similar potential from an ethical point of view, even if scientifically they may behave differently.
Given that, it seems so much more important to ban reproductive cloning, however it is achieved—there may be many ways in which it can be done—and to leave embryonic and adult stem cell research to continue.
5.8 p.m.
Baroness O'Neill of Bengarve: My Lords, as a member of your Lordships' Select Committee on stem cell research, I shall say, for obvious reasons, nothing about stem cell research. We have only just finished taking evidence. That may, of course, help me to stay rather nearer to the subject of this Bill because it is not about stem cell research.
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I believe that I can only add to the debate, to which I have listened with enormous interest, a suggestion that it is not entirely obvious that emergency legislation is needed to ensure that reproductive cloning is prevented. The need for haste supposedly arises as a result of the High Court judgment of 15th November in which Mr Justice Crane held that the HFE Act 1990 should be interpreted strictly as applying only to embryos produced by fertilisation. The perception of urgency has, of course, been heightened by the excitable Dr Antinori, who states that he will come to the UK to clone a human embryo. I believe that in the wake of the High Court ruling and even without the passage of this Bill he might find the UK regulatory system to be less than helpful. Legal advice to the Government gave the impression that there was more to prevent him than the High Court ruling suggests. I take it that it was entirely reasonable for the Government to rely on that advice. What else can they rely on until the matter has been tested before the courts?
Before the birth of Dolly, the courts would probably have viewed the process that was used to produce her as being impossible. After her birth, there was an awareness that there might be a problem with the definition of an embryo in the legislation. Nevertheless, the legal advice was that that was not material.
The recent judgment seemingly removes the protection of the 1990 Act from organisms that were produced by nuclear replacement. They are held not to be embryos, as defined in the Act, despite their apparent functional equivalence. It is ironic to reflect that that action was brought by a group that was committed to the protection of the human embryo and which regards the organisms that are produced by cell nuclear replacement techniques as embryos. Even if it was thought that the Act offered defective protection, the received interpretation was a massive deterrent to anybody who was tempted by reproductive cloning. One might have supposed that the Pro-Life Alliance would have judged it important to wait until the promised legislation preventing reproductive cloning—or more—was in place before it sought to challenge the 1990 Act.
Seen with hindsight, the defect in the 1990 Act is that it uses a two-part definition of the embryo. Comparable defects have often been revealed by the progress of science: it was once common to define mammals as viviparous animals that suckle their young. Then the inconvenient duck-billed platypus challenged the definition by turning out to be an egg-laying animal that suckles its young. In the Act the embryo is identified, albeit only implicitly, by its purpose or function as an organism that may, if implanted successfully, develop into a foetus, a child and ultimately a full person. On the other hand, it is also identified by its origin in fertilisation. If both criteria must be satisfied for the Act to apply, as the High Court has held, organisms that are functionally equivalent to embryos that are created by fertilization, but which are not created by fertilisation, are not embryos for the purposes of the Act.

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It is tempting to think that the response should have been for Parliament to revisit the 1990 Act on a wider front and rapidly to provide a revised definition of the embryo. I believe that that task may be quite complex. However, since I do not wish to go near to any of the topics with which the Select Committee is dealing, I simply suggest that even without this Bill the 1990 Act still provides substantial protection against human reproductive cloning and against some other possibilities.
Even if the High Court's ruling is upheld and the HFEA no longer has jurisdiction over organisms that are created by cell nuclear replacement, there is protection because cell nuclear replacement is not a free-standing technique—although it bypasses fertilisation, it requires a human egg. Section 4(1)(a) of the 1990 Act prohibits those without a licence from storing human gametes; that is, human eggs and sperm. Moreover, Section 41(2)(b) makes it an offence to contravene Section 4(1)(a). The further use of human gametes either for infertility treatment or for research is well within the control of the HFEA, and the Act explicitly provides in paragraph 2(1) of Schedule 2 that a licence for infertility treatment cannot be given,
"unless it appears to the Authority to be necessary or desirable for the purpose of providing treatment services".
The authority has given a clear undertaking about what its view of reproductive cloning is. Even if the Bill were not passed—from what we have heard so far, I imagine that it will be—I do not think that Dr Antinori could take advantage of UK regulations and clone a human being in this country. Of course, in the longer run the declared policy of a statutory body is not guarantee enough; but we do not—and did not—need to panic. I support the Bill.
5.14 p.m.
Baroness Blatch: My Lords, the Bill, so far as it goes, should, and I believe will, be supported by the House today. However, it is not consistent with the High Court judgment and it does not go far enough.
It is practically eleven months to the day since we last debated the use of human embryos and the related subject of cloning. Back in January, I called for more time in which to consider this important ethical issue, and I do so again.
The High Court judgment cannot have come as a surprise to the Government. So many Members of this House and a number of experts outside it advised consistently that the creation of embryos by cell nuclear replacement was not covered by the 1990 Act. The new scientific procedure was not envisaged—it was not even contemplated—during the debates preceding and during the passage of the 1990 Act. Those points were put most forcefully when the Government placed a regulation before Parliament under the authority of the 1990 Act—they did so wrongly, as it transpired. To argue, as the Association of Medical Research Charities has, that Parliament has had a full opportunity to debate and determine the issue, is simply untrue.
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There was no parliamentary scrutiny through the Bill procedure, the regulation was unamendable and it was taken in one day. The House was persuaded to approve the regulation on the advice of the Minister, who made unequivocal statements during that debate. He said:
"The position is simple. Reproductive cloning will not take place in the UK and these regulations cannot in any way make it happen. I say to the noble Baroness, Lady Williams, that legislation will be brought before the House as soon as possible".
We already know that the promise to do so without delay was not honoured. In that debate, I pointed out that, according to the Minister,
"reproductive cloning was illegal and would remain illegal",
and I asked:
"What then is the purpose of the Bill to be brought before Parliament?".
The Minister replied,
"as I explained earlier, reproductive cloning cannot take place in this country because the authority has said that it would not, under any circumstances, license that. For any organisation or person to go ahead and attempt to do so would be in breach of the law that lays down those requirements".—[Official Report, 22/1/01; cols. 117-18.]
Parliament has not considered, through the normal parliamentary Bill procedure, the issue of CNR techniques either for human cloning or for therapeutic purposes. The Bill offers prohibition—important though that is—only against the placing in a woman of a human embryo that has been created other than by fertilisation.
I welcome the Government's desire at last to make it certain once and for all that human reproductive cloning is illegal in this country. However, as I have just explained, we had reassurance from the Government in January that reproductive cloning was illegal and that a Bill would be introduced to put the matter beyond doubt. It turns out that because of the High Court judgment of 15th November reproductive cloning is not governed by the law.
I turn to the judgment. The Government's Explanatory Notes, which accompany the Bill, state that that judgment,
"held that embryos created by cell nuclear replacement were not governed by the Human Fertilisation and Embryology Act 1990. As a consequence the Human Fertilisation and Embryology Authority could not implement a ban on reproductive cloning by refusing to licence any application for this purpose".
After all of the Government's reassurances that cloning in all its forms was covered by the 1990 Act, Parliament should have been given sufficient time to debate all the implications of the judgment.
As I have already said, I welcome the Bill so far as it goes, but I do not believe that it goes far enough. First, it refers only to placing an embryo in a woman. The prospect of embryos being placed in animals was recognised as a reality in 1990 and specifically outlawed in Section 3(3)(b) of the Human Fertilisation and Embryology Act 1990. No similar provision exists in this Bill.
Secondly, the Bill does not stop a cloned baby being developed in an artificial womb—or even in a man, should science allow such a thing. We know that that

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is possible in animals. The Bill does not stop a cloned embryo from being created in this country and taken abroad for placing in a woman. The Sunday Times yesterday had an article entitled,
"British expert may join bid to clone human",
and it suggested that there would be collaboration with Dr Antinori to do exactly that. Therefore, the self-publicist Dr Antinori could achieve his ends without even coming to the United Kingdom. The noble Baroness, Lady Gould, talked of the danger of Dr Antinori threatening to start the process of human reproductive cloning in a matter of three months. Under the Bill, even when passed, he will be able and free to start the process unlicensed and unregulated.
The Bill introduces an offence of placing in a woman an embryo created by means other than fertilisation. While that may seem a simple offence, it begs many questions. I should like to ask the Minister how that offence will be policed. How will we know that such an offence has taken place, given that this appears to be outside any regulatory framework? Who is covered by the offence of placing? Is it the person who places the embryo in the womb or someone involved in preparing the cell nuclear replacement process? What is a human embryo for the purposes of the Act? If an embryo is created using an animal egg and a human donor cell, will that be covered?
I referred earlier to the Explanatory Notes. They fail to mention that as a result of the judgment, the HFEA cannot license any work on cloned embryos for research purposes. That means that any experiments can be done on human embryos created by cloning without any boundaries or limits. There will be disagreement between us on whether or not embryos should be used for research. Like the noble Baroness, Lady Walmsley, I agree that that is not the point of the Bill.
Legislating to stop human reproductive cloning acknowledges that cloned embryos can become fully human babies, yet there will be no protection for those same human embryos if they are used for research on stem cells. That is unacceptable. It creates two classes of embryo—one regulated and one unregulated—as well as raising practical questions. For instance, how long will the embryos be kept before being destroyed? What happens after the 14-day limit on research that is applied to embryos created by IVF? What consent will be obtained to create the embryos? If there is no regulation of the embryos and they grow beyond the embryo stage to a foetus, would it be illegal to implant a foetus?
The noble Lord, Lord Walton of Detchant, in his contribution to the debate, stated—I expect that I shall paraphrase him badly; I tried to take notes—that the process of creating a clone with the potential for making a human being is abhorrent. We all agree with that. However, under the Bill, if passed, it will be possible to engage in the process. It is only implantation that is outlawed. Parliament has recognised that the human embryo has a special status, but the Bill affords cloned embryos none. There should be at least the same protection given to cloned embryos as to embryos created by IVF.
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I understand that the reason there is no reference to embryos is because the Government want to appeal against the High Court judgment. That route is open to the Government, but in the mean time there is no protection for human embryos created by cloning. Surely with integrity the Government could introduce a Bill to ensure full protection of all cloned human embryos which could be amended at a later date, after the appeal date and after the Select Committee has sat. That would allow time for proper thought. In the mean time, embryos can be created here to be used for reproductive cloning elsewhere. Will Britain be the market-place for those countries which will not agree to ban reproductive cloning?
The Government are introducing the Bill to meet our international obligations. Much of the international community agrees that there should be a ban on reproductive cloning, but it should be done thoroughly and with proper scrutiny to ensure that all the loopholes really are closed. I have highlighted some of the serious flaws of the Bill which need addressing, and which we should be able to address. But the undue haste with which the measure has been introduced means that we cannot. In January, many of your Lordships felt that we were given insufficient time to debate the important issues before us. At that time I said,
"To deal with all these issues in an unamendable order is an affront to the democratic process". [Official Report, 22/1/01; col. 31.]
I say the same today. This debate is an affront to the democratic process. Noble Lords will see amendments on the Order Paper, but they do not cover the number of issues which I believe need to be addressed to put the Bill right. Why not? It is because we have been advised by the Public Bill Office that amendments other than those we shall debate later tonight are not within the scope of the Bill and therefore are deemed not relevant. The general public would be horrified to know that amendments that could be the subject of debate and which within the grounds of common sense are relevant cannot be debated here today simply because of government diktat.
Some of these issues have been the subject of evidence to the Select Committee on stem cell research, to which the House agreed in January. There are important issues at stake. Although the right reverend Prelate the Bishop of Oxford said that a body of information on adult stem cell research has been read by the Select Committee, I am concerned to hear, which I believe to be the case, that no scientists working on adult stem cells have been called specifically to give evidence on their own merits. How can that be a fair hearing?
I am also concerned to learn that Professor Chris Higgins, the committee's scientific advisor, is on the academic board of the Tissue Engineering Centre at Imperial College, alongside the noble Lord, Lord Winston. I am sure that the House would agree that it is hard to see how that can be seen as impartial advice when the centre is working on embryonic stem cells. As the noble Lord, Lord Brennan, commented earlier, perception and public confidence in bio-science and

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technology is important. Given the direct interest of the scientific adviser to the committee in cloning using CNR, my confidence, at least, has been sadly diminished.
I shall not oppose the Bill. As we said in January, human reproductive cloning should be outlawed. The Government argued with apparent certainty at that time that it was already illegal. Therefore the court decision and the temporary change of heart on behalf of the Government, albeit late in the day and falling short of what is needed, is nevertheless welcome. On such complex scientific issues we need time to reflect on what the Government will say in response to this evening's debate. However, we shall not have that time. We can only hope that members of the other place will have the opportunity to study what is said in the debate in this House before they discuss it later in the week.
It is certain that the House will have to return to the issue of the introduction, regulation and licensing of cloning using CNR techniques. I hope that it will not be said that we have discussed the issues at length on a number of occasions. All discussions have been conducted in a framework of a straitjacket of unamendable and almost unamendable legislation.
In conclusion, last week in a potent leader, the Daily Telegraph stated:
"The new Bill will almost certainly not ban human cloning as Ministers claim, but merely the implantation of cloned embryos in the womb. The cloning of embryos solely for research, and their export, would remain legal and unregulated".
That was followed by an article in the Catholic Herald, which I received today, which stated:
"one might have expected extremes of caution never before envisaged when Parliament decided to deal with legislation involving the building blocks of human life.
Not this Government. It simply pushed its imperious steamroller ahead in the face of the best legal advice in the country, and it is now promising to do the same again".
5.28 p.m.
Baroness Lockwood: My Lords, this is a narrow and tightly drawn Bill with a narrow and specific purpose; namely, to fill a gap identified in the 1990 Act by the judicial review. It is not intended to be a comprehensive Bill addressing the various issues raised by the noble Lord, Lord Alton, and others, many of which, as the noble Lord, Lord Walton, indicated, had been carefully considered in the passing of the 1990 Act. Nor is it an occasion to raise issues about a report which the Select Committee has not yet published. I understand that it has not even begun to draw up its report.
The issue before us today is different from the subject of debate on 22nd January last when the House was deciding whether or not to extend the areas in which research on human embryos could be permitted under the 1990 Act, albeit in a way provided by that Act and in the light of developments in stem cell research.
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I understand the deep concerns and the need to balance ethical and moral considerations with a possible advancement of medical science which results in the relief of much human suffering from a whole range of hitherto incurable diseases. But today the issue is surely much simpler. It is to restore the law to what it was assumed to be; namely, that the cloning of a human being is an offence under the 1990 Act and is thereby banned. That is a principle on which there is unanimity within this House, in the other place, and, apparently, in the country as a whole. We are all agreed that human reproductive cloning is abhorrent.
It is interesting to read the 15th November judgment of Mr Justice Crane and his summary of events since the report of the Warnock committee. Although the science was not sufficiently advanced at the time of the Warnock committee report, nevertheless it envisaged possible scientific advancement being such as to enable the cloning of a human being. Both the White Paper that followed and the government Bill—subsequently the 1990 Act—intended to outlaw such a possibility.
The report of the Donaldson committee in 2000, the Government's response to that report, and the 1991 regulations, all, as the judge indicated, proceeded on the basis that embryos created by cell nuclear replacement were governed by that Act. On the basis of the judge's literal interpretation of the 1990 Act, he concluded that it did not cover embryos created by CNR. He ruled accordingly.
The ruling leaves a gap in the legislation. The Government have correctly moved quickly to fill the gap. It is of the utmost importance that action is taken immediately to avoid uncertainty, leading to undue concern among people generally, and to prevent the possibility of rogue scientists at home or abroad trying to take advantage of the temporary situation in this country.
So far, media comment on the judicial review has been modest. However, following yesterday's announcement of further advances by American scientists, one can imagine some panic, especially as we recall both media and public reaction in 1997 when the cloning of Dolly the sheep was made known. There was, and still is, a real concern among people about the perceived possibility of cloning a human being. To be seen clearly to rule that out by law will do much to allay those fears. I agree with the noble Baroness, Lady Warnock, and my noble friend Lady Gould, that the Government must deal with the issue quickly.
I do not believe that, in general, the public are opposed to medical scientific advancement. On the contrary, they welcome continuing progress to find new cures for diseases and disorders. But they want to be absolutely certain that new knowledge is not used for wrong or ill purposes.
Some noble Lords have argued that there is no need for today's speedy action; that we should await the report of the Select Committee, chaired by the right reverend Prelate the Bishop of Oxford, and the Government's appeal against the judgment. Similar types of delaying arguments were put forward in January about the proposed regulations. We have

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heard them repeated today: that we should await more comprehensive legislation by the Government and review the whole situation. Why should we wait? There can be only one reason: to turn the clock back and to limit or prohibit all research on embryos. I reject that completely. Modern science is advancing very rapidly, as we all agree.
It may be that we shall have to amend the 1990 Act and its regulatory procedures from time to time. I do not object to that. It is necessary to review and amend legislation if it does not meet the needs of the day. A thorough review following the report of the Select Committee and the outcome of the appeal against the judgment will be justifiable and will in the usual way be a very thorough one in your Lordships' House. However, in the mean time a gap has been identified in our legislation and the only proper course of action for the Government and for this House is to fill that gap. I wholeheartedly support the Bill before us.
5.37 p.m.
Baroness Sharp of Guildford: My Lords, as the noble Baroness, Lady Lockwood, has said, this is a brief and narrowly drawn-up Bill with a specific purpose; namely, to prohibit human reproductive cloning.
So far as concerns the Liberal Democrats, in our 1999 policy paper we argued in favour of specific regulation prohibiting human reproductive cloning. During the debates on the regulations—in the early part of this year and on 22nd January—we called for specific legislation. The Government assured us that regulation of all forms of cloning was covered and indeed prohibited under the terms of the Human Fertilisation and Embryo Act and that there was no possibility that human cloning could go ahead.
Nevertheless, we repeated our call for specific legislation. We wanted to hear in the Queen's Speech that legislation on the matter was to be brought forward by the Government. Had that been so, we might not have found ourselves in the position that we are in today of having to push through very hurriedly and hastily a Bill to which we cannot give due consideration at this time. The guillotining of the Bill by both this House and the Commons is one that offends the standard of democracy of this House. It is one to which we as a party object.
Nevertheless, the Government have been caught out by the court judgment of 15th November. That judgment says that because fertilisation is not involved the process and products of cell nuclear replacement fall outside the regulatory framework of the Human Fertilisation and Embryology Act. Does that matter? Do we need regulation now? I repeat the phrase—they fall outside the regulation of the Human Fertilisation and Embryology Act.
The noble Lords, Lord Winston, Lord Walton of Detchant and Lord Turnberg, have all told us firmly, and we fully accept, that the science is still at an early stage and that we are a long way from experiments in cell nuclear replacement and the implantation of embryos working. We are nowhere ready to proceed with human reproductive cloning in that sense. As my
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noble friend Lady Walmsley said, Antinori blows his own trumpet extremely loudly. The noble Baroness, Lady O'Neill of Bengarve, said that he would find far more difficulties with existing regulations in this country than he implies when he says that he is just waiting to come to Britain to perform cloning.
Nevertheless, there are grounds for supporting the Government's hasty legislation. The noble Lord, Lord Brennan, warned us that if experiments proceed, the results could be horrific—partly because the science is still so new. It is vital for us to retain confidence in science if we want to proceed with therapeutic cloning. As the noble Lord, Lord Turnberg, said, we rightly have considerable faith in the Human Fertilisation and Embryology Authority. It is internationally regarded as exemplary in its regulation of the area. It has led to advancement of science in this country that has not been equalled elsewhere. If we want the public to have confidence in science, we must have confidence and pride in the regulatory framework. The problem posed by the 15th November judgment is that there is no regulatory framework for human reproductive cloning based on cell nuclear replacement.
As my noble friend Lady Walmsley said, we have considerable reservations about the Bill as drafted. For example, we are surprised that it does not accord the embryos created as a result of cell nuclear replacement the same protection as other embryos are accorded under the Human Fertilisation and Embryology Act 1990. Nevertheless, our view is that the Bill should pass, and we will back it. That does not imply that we are entirely happy with the procedures or believe that the Bill is sufficient, but we are encouraged by the fact that we know that the Select Committee will shortly be reporting, that much more comprehensive legislation is likely to follow and that loopholes in the Bill can be filled then. We support the, Bill as a stop-gap measure. We on these Benches look forward to the Select Committee report and the opportunity that it will provide to consider much more comprehensive legislation in the area.
As I said, we object to the haste with which this short Bill has been pushed through. Had we been listened to earlier, it would not have been necessary. But we understand why the Government now feel obliged to legislate to plug the loophole that has appeared. For that reason, we shall support the Bill, but we see it as a stop-gap, and look forward to a much more considered piece of legislation in due course.
5.44 p.m.
Earl Howe: My Lords, for the second time in fewer than 12 months, we find ourselves debating questions that are as sombre as they are deep—questions about the engineering of human life and the nature of human personal identity. None of your Lordships can fail to be profoundly reflective and serious in the face of such matters. In January, when we considered stem cell research, a spirit of reflection and seriousness went hand in hand with a diametric polarisation of views. I venture to say that in this debate, unlike that one, opinion on at least the central issue is united.

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The Minister, in his characteristically clear way, explained the content of the Bill and why the Government feel compelled to bring the measure before us in such rapid order. Emergency legislation is never welcome. By its nature, it can only be a consequence of some severe national threat: the "imminent perils" referred to by tradition in the Peers' Writ of Summons. Emergency legislation is unwelcome in another sense. As my noble friend Lady Knight reminded us, we are all only too well aware of the risks of legislating in haste. In such circumstances, realism must be combined with caution. The nature and extent of the threat must be precisely defined. If there are alternatives to hasty law-making, they should first be pursued.
Having listened to the Minister, who has been kind enough to brief me privately, I am convinced that the Bill is wholly necessary, and that the Government had no option but to bring it to Parliament as rapidly as possible. There may be legitimate arguments, as we have heard today, about whether Ministers might have acted earlier and in less haste, and whether the scope of the Bill is sufficiently wide. But if we ask ourselves whether reproductive cloning is an appropriate matter for emergency legislation, there can be only one answer, for we are dealing with that most urgent matter of all: literally, a matter of life and death.
While it is a commonly agreed position that human reproductive cloning is an ethically abhorrent notion, I have read little analysis in print of the underlying philosophical arguments. It is important that those arguments do not go by default. For that reason, the House is indebted to the right reverent Prelate the Bishop of Oxford and the noble Lord, Lord Brennan, for articulating the Bill's ethical underpinning with such clarity. We must remind ourselves that there are those, quite apart from Professor Antinori, who seek to justify human reproductive cloning for infertile couples in the same terms as they might justify assisted conception by in vitro fertilisation.
A recent press release from the Human Cloning Organisation mentions,
"the fundamental rights and liberties of a minority group"
and refers to the Bill as a limitation of,
"reproductive choice and freedom".
A ban on reproductive cloning is seen as,
"the logical equivalent of enforced sterilisation"
for,
"those that want nothing more than a genetically related family".
The language that attempts to justify reproductive cloning in such terms is one that treats children as commodities and subordinates the basic rights of such children to the demands and desires of childless couples who want to become parents.
Reproductive cloning has no claim whatever to any moral equivalence with in vitro fertilisation. That is not simply because of the scientific risks associated with the technique—significant as those are—but because reproductive cloning, if successful, would result in the creation of an individual deprived of two fundamental
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rights that, I dare say, each of us has up to now taken for granted. Those are the right to have a genetic father and mother and the right to a genetic identity of one's own, separate from that of any adult already living. Those rights are—or should be—as inalienable as any in our constitution. They go to the heart of what we mean by human dignity and what it is to be an individual. A society that permitted reproductive cloning would be one that failed to value the uniqueness and equality of each of its members.
Those are the reasons why we have a duty to support the objectives of the Bill and why I, for my part, intend to vote in favour of it. But not for a minute do I want to overlook the concerns expressed by a number of noble Lords about areas in which the Bill may be deficient.
The Minister needs to make it clear to the House why the Government are not proposing to address the recent High Court judgment in its totality by bringing forward regulation of all procedures involving cell nuclear replacement. He said that the judgment is currently the subject of appeal and that the conclusions of the committee chaired by the right reverend Prelate the Bishop of Oxford should he awaited.
Those are arguments of pragmatism, but they beg the question of risk. It cannot by any standard be satisfactory that cell nuclear replacement as a process falls completely outside the scope of the current law. Whatever view we may individually take of the ethics of stem cell research involving CNR. whether we are for or against it, we must all be left profoundly disquieted that there is currently no means in law by which it can be regulated.
When we debated these issues in January this year, most of us believed that cell nuclear replacement had been regulated by the 1990 Act. That turns out not to be so. There were those, such as my noble and learned friend Lord Rawlinson, who in January told us in the clearest of terms that it was not so. While my noble and learned friend is entitled with some pride to say, "I told you so", I suspect that he will agree that it is not the most pressing aspect of the circumstances which now confront us. Much more important is whether there is a practical risk that some person in this country will undertake CNR without let or hindrance from the law.
The answer to that question seems once again to be a pragmatic one: that it would take a licensed research centre to engage in such work and that no licensed centre would want to jeopardise its status as a suitable practice by doing so. As arguments go, that does not seem to be a strong one.
If it is correct that the handling of human eggs outside the body is still subject to regulation under Clause 4 of the 1990 Act, it is clearly an important safeguard. I hope that the Minister can confirm that my understanding of that is right. However, I wonder whether in practical terms the bar on experimenting with unnucleated and renucleated eggs is as robust as all that. I should be grateful if in summing up the Minister could go into more detail on that issue.

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We may find that we need to accept the Government's view of the matter and await the Court of Appeal judgment. If so, we need at the very least an assurance from the Minister that should the Court of Appeal confirm the recent judgment of the High Court, and the scope of the 1990 Act was thereby regarded as legally settled, legislation governing cell nuclear replacement and its use in stem cell research would be brought before Parliament as a high priority, taking into account the conclusions of the committee chaired by the right reverend Prelate.
I hope, too, that the Minister will be in a position to cover some of the real concerns voiced in the debate. It would be helpful if he could tell us what legislation, if any, is proposed in Scotland. The Explanatory Notes state that the Bill extends to Scotland, but I can see no explicit provision to that effect in the Bill. It would also be helpful if he could comment on the drafting of the Bill.
Extraordinary and abhorrent as the possibility may seem, it has been put to me and was mentioned by the noble Lord, Lord Alton, and my noble friend Lady Blatch, that it might be feasible to incubate a cloned human embryo in the body of an animal. Indeed, the 1990 Act appears to allow for the possibility of animal incubation. But if that is so, why does not the Bill echo that provision? And if the Bill before us is passed into law, what is to stop Professor Antinori, or anyone else, from using the freedom of this country's unregulated environment to conduct CNR experiments, deep freeze the results of such work and take those results abroad?
Given that the recent High Court judgment turned on the question of what was or was not an embryo for the purposes of the 1990 Act, I find it odd, to say the least, that the Bill contains no definition of the word "embryo". The same can be said of the word "fertilisation". No doubt the Minister will say that the purpose of the legislation is clear, but such semantic looseness has got the Government into their recent trouble. We do not want a repeat of that. Like the noble Lord, Lord Brennan, I see strong arguments for trying to close any such loopholes which we can now identify.
In the context of this Second Reading debate, we must return to the central point at issue. Is what the Bill sets out to do worthy of our support? I am in no doubt that it is. There are times when the official Opposition have a duty to take the Government to task for their perceived omissions, for their wrong assurances, for ignoring warnings and for not acting sooner. This is not one of those times. It is a time for Parliament to speak with one voice; to make a clear statement about our commonly held values; and to forestall a real and imminent threat. From these Benches, I am pleased to offer my support to the Government for the proposals now before us.
5.56 p.m.
Lord Hunt of Kings Heath: My Lords, our debate has been of high quality and the contributions have ranged far and wide across the ethical and practical
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dimension of cloning. I agree with the noble Earl, Lord Howe, that the debate reflected the seriousness of the matters before us today. Furthermore, I thought that the right reverend Prelate the Bishop of St Albans made some thoughtful comments about the dimensions in which we are discussing the matter.
As regards therapeutic cloning, I suspect that we are unlikely ever to come to unanimity of view. However, I agree with the noble Lord, Lord Alton, that dialogue is most important in those matters. As my noble friend Lady Lockwood said, what unites all noble Lords is an abhorrence of human reproductive cloning and a desire for us all to see effective regulation in place.
In referring to emergency legislation, the noble Earl, Lord Howe, said that it was never welcomed but he believed that it was justified in this case. His critique of the ethics of human reproductive cloning were both helpful and apposite.
The noble Baronesses, Lady Blatch and Lady Knight, criticised the process by which we have reached today's situation. I believe that since 1997 there has been a thorough debate of many of the issues. There was the original report from the House of Commons Select Committee on Science and Technology; the public consultation by the HFEA and the Human Genetics Advisory Commission, which led to their recommendations and report, Cloning Issues in Reproduction, Science and Medicine—
Baroness Knight of Collingtree: My Lords, I am grateful to the Minister for giving way. Will he concede that in these matters progress is being made quickly over a large area, so that a debate four or live years ago may not necessarily have been sufficient to deal with all the problems?
Lord Hunt of Kings Heath: My Lords, perhaps I may turn to that matter in a moment because I was describing two steps in an extensive process. Those reports were followed by a thorough examination of the matter by the Chief Medical Officer's expert group. That paved the way for the regulations which were put before the House at the beginning of the year. I believe that those debates—a seven-hour debate in your Lordships' House and a three-day debate in the House of Commons—allowed many views to be aired and allowed the subject to he thoroughly discussed.
The noble Baroness, Lady Blatch, was critical of the advice I gave to the House in January in relation to the 1990 Act and the comments I made as regards human cloning. I say to the noble Baroness that what I said then was based on legal advice given to the Government. I believe that it was appropriate to follow that advice.
The noble Baroness, Lady Knight, suggested that the Government had acted in haste in bringing emergency legislation before your Lordships' House this afternoon and that perhaps we should have been a little more relaxed about excitable Italians who make what may appear to be far-fetched claims. I tend to agree with the noble Baroness about the particular Italian to whom she refers, but ultimately I do not

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believe that we can take that risk. The announcement yesterday in the United States surely reinforces the need to take action urgently.
My noble friend Lord Brennan gave five reasons for taking action. In particular I agree with his comments about the need to restore public confidence in science, the safety issues involved in human reproductive cloning and the ethics that follow from that. Perhaps on the same theme, the noble Baroness, Lady Walmsley, suggested that the Government could have awaited the report of the Select Committee of the House of Lords. I believe that in an ideal world it would have been better to await that report and, in the light of it, bring legislation before your Lordships' House, if that was required. But the Government had to make a judgment, and I believe that they were right to decide that because of the specific threat that this procedure might be carried out in this country, legislation should be brought forward urgently.
The noble Baroness, Lady Warnock, welcomed the proposal and said that it would reassure those who were concerned about human cloning. In particular, she dealt with the "slippery slope" argument which many noble Lords had raised in the debate on the regulations in January. The noble Baroness also made the very important point that if we dealt with the specific issue of human reproductive cloning, it would allow us time to concentrate on therapeutic cloning.
The right reverend Prelate the Bishop of Oxford informed the House that the Select Committee's report would be published very soon. As I said to the noble Lord, Lord Alton, it is the intention of the Government to listen very carefully to the recommendations of that report. If, as a result, it is apparent that further legislation in this area is needed, the Government will bring it before Parliament. But I accept that it is important to have sufficient time to consider carefully the results and recommendations of that report, and that is what we shall seek to do.
My noble friend Lord Winston referred to some of the practical problems of cell nuclear replacement; for example, the abnormalities of animals involved in the cloning process, the impairment of genetic imprinting and the fact that other genes are not expressed normally in those animals. Those were very telling remarks about some of the risks involved. That is another reason why we believe it right to bring legislation before your Lordships' House this afternoon. My noble friend referred to my remarks about the potential of therapeutic cloning. The noble Lord, Lord Rix, very much reinforced the point that I made. I accept that we must be cautious about the time when those benefits may emerge. I also accept the strictures of my noble friend that at this stage none of us can say for certain what will be the impact of this research. But my noble friend said that we should not ban the pursuit of knowledge and I believe that to be very important.
The noble Lord, Lord Alton, made a number of points. He would urge the House to prohibit human cloning of all kinds until the Select Committee reports and, if necessary, legislation is subsequently brought
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before the House. I believe that there is a different order of consideration. Surely, the noble Lord, Lord Walton, and my noble friend Lord Turnberg put the point correctly: the difference is that this House and the other place have indicated time and again that they oppose human reproductive cloning, but last January this Chamber voted by a large majority to allow therapeutic cloning. I believe that that indicates that there is a different order of consideration. If, as a result of the legal process, such therapeutic cloning is unregulated, the Government will return to Parliament.
Baroness Blatch: My Lords, I am grateful to the Minister for giving way. Does the noble Lord concede that during that debate noble Lords were assured: first, that the parent legislation was the 1990 Act and, therefore, the measures were pre-authorised and all they were doing was passing secondary legislation; secondly, that the matter would be regulated as a result of that; and, thirdly, that the whole issue of regulation was all right and that cloning was, in fact, illegal? Does the Minister agree that the vote was taken in the context of all those assurances by the Government which have since been declared by the High Court not to be regular?
Lord Hunt of Kings Heath: My Lords, the Government wish and seek to have therapeutic cloning regulated. We are in the middle of a legal case and are appealing against the judgment of 15th November. If at the end of that legal process the Government lose their case and therapeutic cloning remains unregulated, we shall seek to bring before the House further legislation to ensure that it is regulated.
Baroness Blatch: My Lords, it will not be a question of bringing forward legislation to make sure that it is regulated. The matter must come before Parliament by way of primary legislation to be approved as a technique, after which it will be regulated.
Lord Hunt of Kings Heath: My Lords, I do not believe that anything I have said is in disagreement with the comments of the noble Baroness. It would require primary legislation and it would need to be regulated.
Lord Alton of Liverpool: My Lords, I am grateful to the Minister for giving way. For the understanding of people outside this House, will the Minister also confirm that as soon as the court case began in January the Human Fertilisation and Embryology Authority said that until the whole legal process was completed—it could go as far as your Lordships' House and the Law Lords and on to the European Court—no licences would be issued?
Lord Hunt of Kings Heath: My Lords, I make two comments in response. First, it is certainly my impression that the HFEA said that pending the court case no applications involving therapeutic cloning would be entertained. Secondly, as of 15th November

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the HFEA lost competence in that regard. The noble Lord is absolutely right. That was why I said it was the intention of the Government that, at the end of the legal process, if therapeutic cloning was found to be unregulated, the Government would seek to bring legislation before your Lordships' House to put it right.
There was some debate about the use of terminology, in particular the word "embryo". I believe that in this respect the judgment of Mr Justice Crane is apposite:
"it is conceded, in my view correctly, that the organism produced by [cell nuclear replacement] is naturally described as an 'embryo', at least when the two-cell stage is reached. That is consistent with the expert evidence before the court".
I interpret that to say that it is not in question that an organism created by cell nuclear replacement is an embryo. The question the judge decided was whether that embryo fell to be regulated by the 1990 Act and subsequently by the HFEA. He concluded that it did not fall to be regulated by the authority.
The noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Sharp, paid tribute to the work of the HFEA. I very much concur with their comments. The authority has earned an international reputation and we can he proud of the way in which, since 1990, it has ensured that a professional and well-regulated process has been put in place.
Perhaps I may turn to an issue which has been raised again; namely, whether embryonic stem cells ultimately will produce more effective results than adult stem cells. I have listened with great care to the comments that have been made by many noble Lords in the course of the debate. The evidence available so far from the greater body of science suggests that work should continue on both fronts. At this stage, we do not know the outcome of either area of research and thus we ought to ensure that the research covers them both. The chairman of the Royal Society, Professor Richard Gardner, recently stated that:
"Although recent developments in the study of adult stem cells are very exciting, the Royal Society does not believe that this area of research represents a scientific alternative to embryonic stem cell research. Both research areas need to be pursued because it is likely that each will yield distinctive therapeutic benefits. Indeed, research in one area may help work in the other. We cannot predict which area will yield the first or best therapies".
A number of comments were made as regards the international and the European position. Although claims have been made that there is consistency here, the fact is that different countries have taken wholly different approaches to the matter. In the United States, President Bush has announced a limited relaxation on federal funding in respect of embryonic stem cell research using cell lines obtained before August 2001. It is true that a Bill to ban all cloning gained early support, but I understand that at the moment the legislation has been dropped from the timetable in the Senate in the light of events post 11th September. In some other countries, embryo research is subject to legislation, while in others no legislation has been put in place. That is the case in Belgium and the Netherlands, where nevertheless embryo research is carried out. With regard to European action,
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following the establishment of the European Parliament's temporary committee on genetics, perhaps I may respond to comments made by the noble Baroness, Lady Knight, by saying that the European Commission has made it clear that the control of embryology is a matter for national law and national parliaments. However, on the question of human reproductive cloning, I can tell the House that the Government will support international efforts to establish a universal ban on such cloning.
Lord Alton of Liverpool: My Lords, can the Minister also confirm to noble Lords that, 10 days ago, the European Parliament passed by majority vote a resolution to prevent the provision of any funding for any scientist working in the Community who uses therapeutic as well as reproductive cloning techniques?
Lord Hunt of Kings Heath: My Lords, I am not aware of the exact terms of the relevant motion, but ultimately that vote would not affect this country's competence in the area. Furthermore, it would not affect the Government's ability to fund research efforts. The substantive point I seek to make is that, other than the hoped-for growing international consensus in relation to human reproductive cloning, major differences exist between countries as to how they approach these matters.
A number of comments have been made on the subject of implantation in animals. Fertilised embryos are fully governed by the 1990 Act which places an explicit ban on placing human embryos in any kind of animal. I understand that no suggestion has been put forward in any of the studies involving animals that it is intended to carry out reproductive cloning in such a way, or that it would work, if tried. But of course this is a matter to which the Government will return in the light both of the appeal and of the recommendations of the Select Committee.
The noble Lord, Lord Alton, asked about Recommendation 6 in the Donaldson report, which states that the mixing of human adult cells with the live eggs of any animal species should not be permitted. In their response to the Donaldson report, the Government agreed with that recommendation and stated that they would introduce legislation as soon as parliamentary time allowed. That remains the position in relation to the matter. In the mean time, we have called on those bodies funding the research to make it clear that they will not fund or support research involving the creation of such hybrids.
Questions were raised as regards the position of the women described in the Bill. The legislation makes it clear that the penalty applies to a person who places an embryo in a woman. That does not penalise the woman, although, as with other offences, the woman may be liable under the general rules of criminal law if she is an active or knowing participant.
Lord Alton of Liverpool: My Lords, I am grateful to the noble Lord for allowing me to intervene. Let us take the case of a woman who is desperate to have a child and so agrees to proceed with such all illicit

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procedure. In those circumstances, surely if subsequently she were to reconsider her actions, it would quite wrong to criminalise her. According to the penalties set out in the Bill, such a woman could face up to 10 years in prison or a fine or both. Furthermore, she might be pushed into the hands of a backstreet abortionist because I presume that she would not wish to give reasons why she wished to seek a termination of the pregnancy.
Lord Hunt of Kings Heath: My Lords, it is difficult to respond to the "what if" scenario painted by the noble Lord. However, I should say that the construction of the Bill is similar to that of the Act. I understand that no prosecutions have taken place under that Act of any women who have been involved in activities listed as criminal under the Act. But clearly the circumstances under which the events took place would strongly influence any decision as regards prosecution.
The noble Lord, Lord Alton, also asked about human rights. A long line of authorities from Strasbourg to the European Court of Human Rights has never afforded a foetus legal rights in order to give it the same legal status as a child or adult. Consequently, Article 2 has not been held to apply, let alone to be breached, in the case of a foetus or embryo.
The noble Earl, Lord Howe, asked about the position in regard to Scotland, as did the noble Lord, Lord Alton. I can confirm that the Bill will extend to the whole of the United Kingdom. It is the convention that Westminster Bills extend to Scotland unless it is made explicit in a Bill that it does not do so. For some reason that escapes me, the converse is true for Northern Ireland.
Lord Alton of Liverpool: My Lords, I am grateful to the Minister for allowing me to intervene once more. The Bill specifies that the Director of Public Prosecutions will bring forward cases in England, Wales and Northern Ireland and will be responsible for determining whether a prosecution should be pursued. Can the Minister tell the House whether in Scotland the Lord Advocate would undertake those tasks? Who would bring forward such prosecutions? That information is not specified on the face of the Bill.
Lord Hunt of Kings Heath: My Lords, again, that is consistent with all legislation as well as being consistent with the 1990 Act. Prosecutions in Scotland would be brought forward in the normal manner for criminal cases.
Perhaps I may turn to a number of questions raised in regard to definitions. I should like to make a general point. Terms such as "fertilisation" and "embryo" are used extensively in legislation. The purpose of that is clear and I caution the House against trying to secure too tight a definition of the terminology. In this unfolding and fast developing field, the stronger the attempts to tighten the definitions, the easier it is to build future loopholes into the legislation. That should
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explain the terminology that has been used and which we have tried to make as consistent as possible with the original 1990 Act.
The noble Baroness, Lady O'Neill, referred to the HFEA being able to regulate the use of eggs. My understanding is that the HFEA's power is limited and applies to the storage of eggs and their use to create embryos by fertilisation. My advice is that the 1990 Act does not govern the use of fresh eggs, which can be used to create a cloned embryo. So that means that the HFEA would not be able to prevent cloning by regulating the use of eggs in this way.
Turning to a central point of the arguments put before your Lordships' House today, this is not a comprehensive Bill; it makes no claim to be such. As the noble Baroness, Lady Sharp, said, it is a stop-gap Bill designed to deal with the most serious issue that arises from the judgment of 15th November. I believe that it is a proportionate response. I wish again to give an absolute assurance to your Lordships. A number of issues have been raised which, in the light of the current judgment, appear to be outwith regulation. We shall return to those matters at the end of the legal process and in the light of the House of Lords Select Committee report. If, ultimately, it appears necessary to bring further legislation before Parliament, we shall not hesitate to do so.
The Bill—urgent as it is—is a proportionate response to the issues we face following the judgment. I hope that your Lordships will support the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

European Communities (Amendment) Bill
6.22 p.m.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]
Clause 3 [Approval of increase in powers of European Parliament]:
On Question, Whether Clause 3 shall stand part of the Bill?
Lord Stoddart of Swindon: I oppose the proposition that Clause 3 stand part of the Bill. I do so because this is an opportunity for a debate on the increasing powers of the European Parliament. The Treaty of Nice seeks to increase a number of powers in a number of respects—for example, through co-decision and the appointment of the President of the Commission.

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Section 6 of the European Assembly Elections Act 1978 states:
"No treaty which provides for any increase in the powers of the Assembly"—
it is now, of course, a parliament—
"shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament".
Hence the reason for Clause 3.
The 1978 Act was introduced in an effort to facilitate and continue the Lib-Lab pact. The Labour government were at that time under growing difficulties and the then Leader of the House, Michael Foot—who was then a eurosceptic—introduced the Bill for direct election because he wanted to keep that pact going, and with it the Labour government.
Many people, including myself, were very much opposed to giving the European Assembly, as it then was, the additional status of being directly elected. We believed that that would enhance its status and lead to an expansion of its powers and its role at the expense of national parliaments. So it has proved, as we very well know. The Assembly was promoted to a parliament and its powers have been greatly expanded—especially through co-decision—and national parliaments have become progressively less powerful and, in many respects, quite impotent.
Section 6 of the 1978 Act was included to assuage the worries of people like myself who feared that the increase of powers to the European Parliament would weaken Westminster. Unfortunately, we were right. Section 6 of the Act has not done what it was intended to do; it has not given the protection to Westminster that was claimed for it in 1978.
Westminster—especially the House of Commons under successive governments—is to blame for handing over powers which, after all, were held in trust from the people. They have been handed over to institutions not entirely elected by and responsible to the British electorate. Parliament fought a war to wrest supremacy from an English monarch, but it is now, in many respects, subordinate to and under the cosh of institutions which are not of its construction and not in keeping with its history, heritage and experience.
While it is true that the back-stop of the European Communities Act 1972 remains in place, it is becoming increasingly irrelevant as Parliament relinquishes its powers and accepts new constitutional arrangements which undermine those built up by this country over the centuries. The Prime Minister—whose knowledge of history seems to be as faulty as his spelling of "tomorrow"—judging by his speech to the European Research Institute last Friday, is hell-bent on pushing for even greater involvement by Britain in a closely integrated European entity. This can only result in a further erosion of power and decision-making from Parliament to the institutions of the European Union.
Indeed, even as we are discussing this clause, the House of Commons is about to divest itself of the power to agree EU third pillar justice and home affairs matters through primary legislation by approving Clause 109 of the Anti-Terrorism, Crime and Security Bill. This allows measures, under the third pillar, to be
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implemented by statutory instrument. Also, of course, the Government have plans to reduce the powers of this House to amend statutory instruments. Whether such plans will ever be implemented, I do not know.
As the Government admitted to the House of Commons Select Committee on Home Affairs, Clause 109 can be used regardless of whether or not such measures have a relevance to the fight against terrorism. In other words, it goes much wider than the terrorism Bill, as it is known. This is in spite of the fact that the House of Commons Select Committee recommended that the provision should be confined to measures combating terrorism. It is virtually certain that the Government will force this clause through on the guillotine without proper consideration and discussion. That is completely wrong.
It is wrong to misuse emergency powers in this way, especially as it is likely that, in due time, we will find that the European Parliament has gained power over our laws and justice system while Westminster has lost it and been pushed to the sidelines, yet again, in another important area of policy making.
I know that this place has a great deal of business to transact today, but I make no apology for raising this issue. It is vital and fundamental to the continued sovereignty and supremacy of the House of Commons and of Parliament. I oppose the Question, That Clause 3 shall stand part of the Bill.
6.30 p.m.
Baroness Park of Monmouth: I strongly support the remarks of the noble Lord, Lord Stoddart of Swindon, but my concern extends also to terrorism. I feel a deep concern that the European Union has the power, by setting up common strategies and decisions, to move to action within that framework which requires only qualified majority voting—and we are talking about the disposal of intelligence.
I raised the matter at some length recently and do not propose to waste the Committee's time by repeating what I said then—save to say that I have still received no reply from the Minister to my earlier questions. I cannot understand how the Government can seriously consider putting it in the power of an amateur, leaky organisation like Europol to set itself up as a centre of intelligence activity over terrorism.
There are excellent bilateral arrangements in this area between Britain and many other countries. There are excellent arrangements which have worked for NATO. There is no need to give this organisation powers, as the Government are apparently prepared to do, in the way described by the noble Lord, Lord Stoddart of Swindon, without building in any kind of restraint or brake that would allow us to change situations of that sort once we perceived—as we soon shall—the inherent dangers.
I cannot say too often that human intelligence is a very delicate thing. It simply does not work if it is put into a pool and handled by people who do not understand how to handle it and who also have no

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particular interest in protecting the sources. This is an extremely important issue which has been swept completely under the carpet by the Government.
Lord Williams of Elvel: With some hesitation, I have to say that I rather agree with the remarks of the noble Baroness, Lady Park, about Europol. The whole point about Europol is that it must receive intelligence, and in many respects that has to come from the United States. We have heard in the committee of which I and the noble Baroness are members that the United States would be very reluctant to share its intelligence with Europol. I hope that my noble friend will be able to assure us that this is not on the agenda at the moment. If not, I am doubtful about the inclusion of the clause.
Lord Wallace of Saltaire: My understanding is that Europol does not deal with political intelligence of the highest sort. It is mainly concerned with trans-national crime. When I visited the National Criminal Intelligence Service with one of your Lordships' committees my understanding was that NCIS was strongly in favour of Europol and its development in the investigation of trans-national crime. The question of political intelligence, anti-terrorism information and matters of that sort is a rather different matter. As I understand it, not being an expert, such intelligence comes from different, more confidential channels.
The noble Lord, Lord Stoddart, reminded us of the ditch that was dug in 1978 by a number of Labour Party Back Benchers in very different circumstances against what they saw as the erosion of the power of the national Parliament in favour of the European Parliament. As the noble Lord also explained clearly, this was seen by them—and still is seen by the noble Lord himself—as a zero sum gain: the more power the European Parliament gets, the less power national parliaments have.
That is not a view that we share on these Benches. We see the erosion of the powers of the British Parliament—but we see that happening as a result of the growth of the power of the executive, of the British Government. That is something to which my party is strongly opposed and about which it is much concerned. Speeches about maintaining the sovereignty and supremacy of this Parliament, or even White Papers that refer to maintaining the supremacy of the Commons in terms of the reform of the Lords seem to us to be a little hollow when the House of Commons has steadily lost power to the Government over the past few years.
I am not sure that the "ditch" that was dug in 1978—I am not sure whether or not it was the last ditch—was about a very different view of Europe. Simply on the question of where we are in regard to the third pillar and trans-national crime, I remind the noble Lord, Lord Stoddart that—if I remember my figures correctly—there were 25 million outward journeys from Britain to the Continent in 1978, and there are 100 million now. The level of interaction, legal and illegal, between Britain and the Continent has been transformed since then. That is one of the reasons why
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the British police recognise that they need to co-operate closely with their colleagues across the water. It is also one of the reasons why greater scrutiny is necessary by national parliaments and by the European Parliament.
There is not a zero sum gain between national scrutiny and European scrutiny. I hope that the majority of Members of the Committee share the objective that we should have both stronger national scrutiny and stronger European Parliament scrutiny, and greater co-operation between national parliaments and the European Parliament. We shall not, therefore, oppose the Motion that the clause stand part of the Bill.
Lord Renton: The European Parliament is not a sovereign state. Indeed, the European Union is an alliance of independent sovereign states which have not so far expressed any intention of surrendering their individual sovereignty to a central body. However, if Clause 3 is accepted, it would set an unfortunate precedent within the European Union. It would mean that the intentions that we all supported at the time of the European Assembly Elections Act 1978 had been overcome. Therefore, I strongly support the noble Lord, Lord Stoddart of Swindon. We should not pass Clause 3.
Lord Howell of Guildford: The noble Lord, Lord Stoddart of Swindon, should certainly not apologise for one moment for raising the issues of the powers of the European Parliament and the relationship—which is itself a matter of dispute and debate—with the powers of this Parliament and other national parliaments of member states of the European Union.
We heard from the noble Lord, Lord Wallace of Saltaire, the aspiration that the national legislatures and the European Parliament ought to be able to get along. It is a worthy aspiration. It should have been possible, and it should still be possible, to have within the European Union a system of accountability and the calling of decision-makers to account at all levels which embraced closely and fully the powers of this House and the other place and of other national parliaments and what was then the European Assembly, which later became a parliament. It should have been possible to devise the loop containing processes throughout for such a procedure.
Unfortunately, no attempt has been made to do that. What is more vexing is that, again and again, there are fine words. We have heard some in this debate, the Nice treaty contains some, which are echoed in the Bill before the Committee, as does the clause that we are debating. But absolutely nothing has been done to meet the need that I have described. There is a reference in Declaration 23, attached to the treaty, to the role of national parliaments, and there were such references in previous treaties. There was an assize about 10 years ago in Rome, in which I was involved, when everyone talked about the role of national parliaments. But nothing was actually done. No move was made to create that loop of procedures and to bring back to national legislatures' powers that

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never should have been taken from them and which should have been exercised in close liaison with the European Parliament. On the contrary, the trend is all the other way.
That is why many of us feel that, as the Financial Times said this morning, the entire scene has moved on. Most of the discussions about the treaty and most of the high rhetoric that the Prime Minister utters about the dangers of isolationism and the need to be involved in Europe are all yesterday's debate. They have nothing to do with the issues that we are discussing now, which centre on how to restore to the European Union a proper pattern of accountability before legitimacy drains away altogether. That requires a far greater involvement by national Parliaments and a return of powers to them.
When people tell us about the democratic deficit, I say that the European Parliament fulfils an important and detailed role in calling to account various acts of the other European institutions. But however many powers we give it, a European Parliament is not enough. It will not fill the growing democratic deficit, of which everyone in Europe is aware. Even the European Commission, whose attitudes we discussed under an earlier amendment, recognised in its governance White Paper that democratic legitimacy was declining and was under attack. Those who wrote that White Paper went on to do exactly what some noble Lords have done this evening, wringing their hands and saying that it was all a terrible thing and how desirable it would be for us all to work together, but proposing no means of achieving that, because they would not bite the bullet and face the fact that powers had to be returned to national Parliaments.
The idea that giving more powers to the European Parliament will create a democratic balance is yet one more step along the road to top-down Europe-building, which everybody, right up to Jacques Delors, admits is at an end and will not help us to reinvigorate the European Union and create a modern, flexible Union, built from the bottom up.
The return of powers to national Parliaments and to joint groupings drawn from a reformed and open Council of Ministers, from the European Parliament, which has an important role to play, and from national Parliaments is desirable and inevitable. The Commission, which wrote the European governance White paper, and the decision-makers, with what has been described as their ill-tempered treaty-making at Nice, will have to face that fact, even though they have refused to do so until now. Any further resistance or denial will fracture the Union and undermine its legitimacy further. Indeed, I think that it is already too late.
Those of us who argue that some powers should be surrendered realise that it is a bitter pill to swallow for the Monnet-model European Union-builders and for those, particularly in the Commission, who already feel that they are overloaded with work. If they do not want to be overloaded, they should accept the need not merely for subsidiarity, but for a real return of powers
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to national level and a real re-involvement by national legislatures in the decision-making and legal instrument-making and implementation process.
In its governance White Paper, the Commission asserts once again that it "alone" makes legislative and policy proposals or represents the Community in international negotiations and that it retains a monopoly in the matter of initiatives and proposals to the Council of Ministers. That view is in head-on conflict with the desire that all good Europeans should have to build Europe from the bottom up and it is totally in conflict with the new latticework of international relations and dealings that is now emerging. Such a view belongs to a bygone age, as does much of the thinking behind the Nice treaty. A real reform of European governance means turning upside-down the hierarchical nature of EU decision-making and adjusting the entire structure to the more flexible methods and perspectives of the network era. We have a wide range of detailed proposals for open co-ordination between a reformed council and the member Parliaments, together with the formal methods of proceeding. I shall not detain the Committee now, but at some stage I shall put forward those proposals.
In the meantime, we can say with certainty that adding powers to the European Parliament while neglecting the other track is taking Europe the wrong way and taking our democracy the wrong way. It is wrong to proceed on one track when we should have a definite and powerful two-track strategy. That should involve strengthening national legislatures and reinforcing the opportunities for them to be involved far earlier in legislation, as well as reversing the strong trend for issues and decisions emerging from the Council of Ministers to be made into secondary rather than primary legislation, as noble Lords have mentioned this evening. There are even hints—although this goes far ahead of the present debate—that, should there be a reform of your Lordships' House, even the secondary legislation powers will be downgraded. The noble Lord, Lord Stoddart, was entirely right to raise these matters this evening.
6.45 p.m.
Lord Monson: It may appear that the more powers that are given to the European Parliament, the more democratic the EU becomes, but that cannot be so as long as most MEPs are elected under the closed list system, which is not truly democratic. The reasons for that take too long to go into, but most noble Lords recognise what they are. For that reason and others, I support the noble Lord, Lord Stoddart of Swindon.
Lord Pearson of Rannoch: I too shall briefly support the noble Lord, Lord Stoddart. I also congratulate my noble friend Lord Howell on his analysis of the situation. I do not want to make the Committee more gloomy than it may already be on the subject, but it is worth putting on record the fact that the treaties that we are talking about can be amended only by unanimity. They do not contain an exit clause. Article 48 of the Treaty on European Union makes it clear

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that unanimity is required for any change to the Treaty of Rome. That makes amendments a little more difficult.
Baroness Symons of Vernham Dean: The Government believe strongly in the central importance of this Parliament and of this House in shaping and taking the big decisions that affect our national life. That includes decisions on Europe. That is why, in October 2000 in Warsaw, the Prime Minister proposed a second chamber of the European Parliament drawn from national legislatures. It is also why he pressed successfully for agreement last December at Nice that at the next intergovernmental conference we would consider the role of national Parliaments in the European architecture.
I was very pleased to hear that the noble Lord, Lord Howell, has some detailed proposals to put forward on the role of national Parliaments. I direct his attention to the declaration on the future of the Union. Paragraph 5 specifies that the role of national Parliaments will be looked at, while paragraph 6 addresses that issue and the need to improve and monitor democratic legitimacy and transparency in the Union and its institutions. There is not a great deal of difference between the noble Lord and the Government on the need to look carefully at the issue. The Prime Minister was seized of that argument when he pressed that case successfully at Nice.
That is also why, in his first speech on Europe as Foreign Secretary, my right honourable friend Jack Straw said:
"The EU will go on operating through the strategic leadership of the governments, and through them, the Parliaments of the member states. Those are the institutions which our citizens already know, trust and feel comfortable with".
That remains our commitment.
The Foreign Secretary also went on to say,
"This is not enough on its own. If we really want this European Union to work, the leadership of the member states must be combined with what the institutions of the EU bring to the table. That is the mix we have, and that is the mix we should keep."
Lord Renton: I am very sorry to interrupt the Minister and I am very grateful to her for giving way. She has used the broad term "institutions". Would she be so good as to define that?
Baroness Symons of Vernham Dean: It might be the various ways which the European Union has for coming to its decisions. I believe that it has been drawn very widely in order to allow for the broadest possible discussion, particularly of the issues of transparency and accountability, with which I know Members of the Committee are so concerned. I believe that the use of the word is the widest possible drawing of the ways in which the IGC in the year 2004 will be able to discuss issues around the democratic principles governing the European Union. I hope that has answered the point of the noble Lord, Lord Renton.
The European Parliament is one of those institutions to which I have been referring, and I am sure that the noble Lord, Lord Renton, would agree
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that it is a very important one. It is right that elected representatives at European level should have a role in the making of European legislation. This is especially so in areas which are agreed by qualified majority voting in the Council, where the European Parliament plays an important role in ensuring democratic accountability and legitimacy.
It is right, too, that the European Parliament has the ability to ensure democratic accountability at the European level by holding the Commission to account. We saw in 1999 just how effective the European Parliament can be in this respect. Its action led to the resignation of the whole of the Santer Commission over its unsatisfactory performance.
As my noble friend Lord Stoddart has said, Clause 3 of this Bill is included to meet the requirements of our own legislation, which was agreed in this Chamber. Section 6 of the European Assembly Elections Act 1978 provides that the United Kingdom cannot ratify treaties increasing the powers of the European Parliament unless they are approved by an Act of this Parliament. We believe that this is a very sensible check on the powers of the European Parliament. What we are debating here, therefore, is a standard clause that we debate when we debate European treaties, as I am sure many in this Chamber will recall.
The Treaty of Nice does indeed increase the powers of the European Parliament, but the changes are relatively minor, especially so when compared with the increases in the European Parliament's powers in relation to the Maastricht and Amsterdam treaties. They may be minor, but they are useful. The Treaty of Nice increases the powers of the European Parliament in a number of ways. For example, nine of the articles which have been moved to qualified majority voting in the Council have also been moved to a co-decision procedure. The European Parliament has also been given a limited role in the new early warning mechanism in respect of a risk of a breach by a member state of fundamental human rights—a matter which we discussed in Committee on 15th November in relation to the first group of amendments.
The Treaty of Nice also improves the standing of the European Parliament before the European Court of Justice. It does that in two areas. First, the European Parliament now has the right to challenge acts adopted by the European Community on grounds such as incompatibility with the treaty, or that they have exceeded the European Community's competence. Previously the European Parliament could only bring a challenge for the purpose of protecting its own prerogative. Secondly, the European Parliament can now obtain the opinion of the European Court of Justice as to whether an international agreement to be entered into by the Community is compatible with the European treaty.
These are desirable changes, I believe, but they are fairly modest. The most significant change agreed at Nice regarding the European Parliament is the agreement on the distribution of seats for MEPs in the European Union of up to 27 member states, as we have already discussed.

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Perhaps I may also remind Members of the Committee that the Treaty of Nice makes many fewer significant additions to the European Parliament's powers than previous treaties, in particular the Maastricht Treaty, which was negotiated by the Conservative Party when they were in government. It was the Maastricht Treaty which established co-decision procedures in the first place and which made the European Parliament joint legislator with the Council in a host of key areas. I shall not go into all of those areas now, but I believe that in many ways they were quite significant ones. The Maastricht Treaty also gave the Parliament significant new powers over the Commission. As we have seen, those have been exercised—and exercised in a way which I believe that most in this Chamber felt was entirely right and proper at the time.
I turn now to the point raised by the noble Baroness, Lady Park of Monmouth. I agree with the noble Baroness that the sharing of intelligence is always an extremely sensitive and difficult matter. We have discussed it in this Chamber in relation, for example, to military intelligence, when I have been able to assure the noble Baroness that we only share such intelligence where we believe that it will be fully protected. The same is true of criminal intelligence. We would not share any such intelligence unless we believed that that intelligence would be properly protected, and protected in a way that we would wish to protect it in this country.
I was very taken by the arguments of the noble Lord, Lord Howell, in respect of looking at the future role of parliaments. I will not dwell on the fact that the noble Lord, Lord Howell, in a previous amendment sought to excise that part of the protocol which meant that the IGC in the year 2004 would be considering the role of the parliaments. We will let that go. Nonetheless, I very much look forward to a point where he is able to bring forward what he has referred to as detailed proposals. I am sure that we shall enjoy debating those in the run-up to the 2004 IGC.
The Nice Treaty, however, does not extend the European Parliament's powers in a way that is exceptional, and certainly not in a way that goes beyond the Maastricht Treaty. It does not change the overall institutional balance in the European Union, where it will remain the case that the strategic decisions are taken by member states; with, moreover, the United Kingdom's position strengthened through the greater relative voting power that we secured in this treaty.
What the Nice Treaty does do is to make some very modest and sensible adjustments with respect to the European Parliament. We believe that they are right and we believe that Members of the Committee should be able to approve them.
Lord Pearson of Rannoch: Before the noble Lord, Lord Stoddart, decides what to do with this amendment, perhaps I may put two questions to the Minister which arise from her remarks.
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The first question concerns her statement that the European Parliament proved its value in 1999 by holding the Commission to account, and that indeed its action resulted in the resignation of the Santer Commission. I repeat a question I put to the Government in Committee and to which I have not yet received an answer. Has anything changed as a result of the resignation of the Santer Commission? I ask that against the background of the European Court of Auditors finding that £5 billion has yet again gone walkabout—irregularities, fraud, call it what you will. I seem to remember that it was exactly the same figure which the Court of Auditors found had gone walkabout before the resignation of the Santer Commission. It is, of course, a very much lower figure than the Select Committee of this Chamber has found on numerous occasions, which is at least double that.
My second question is perhaps more important. When the Minister repeats the view of the Prime Minister that there should perhaps be a second chamber in Brussels, and so on, and the recent statement by the Foreign Secretary on events as we move towards the next IGC in 2004, can she say whether Her Majesty's Government envisage any return of powers to national parliaments as a result of this process, as we move towards 2004? If they do envisage any return of powers, do they agree that it will have to be achieved by unanimity, and could the Minister say what those powers might be?
7 p.m.
Baroness Symons of Vernham Dean: Perhaps I can deal with the last point first. The noble Lord asks whether Her Majesty's Government envisage any return of power. I can say that Her Majesty's Government are approaching the discussions on the future of the European Union with an open-mind.
I stress that we signed up to a protocol addressing the issues which said that we recognise the need to improve and monitor the democratic legitimacy and transparency of the Union and its institutions in order to bring them closer to the citizens of member states. We should draw from that an understanding that the current position is one that can be improved upon; otherwise, why is it necessary to look at the need to improve, the need to monitor and the need to look at democratic legitimacy? We discuss those matters all the time. I draw from that that it will be an opportunity for reform. Does that mean that it will be a return of powers to this Parliament? I cannot answer that. I can say that it will be an opportunity for people to make those arguments in the run-up to the IGC in the year 2004. But any treaty changes will have to be agreed by unanimity.
The noble Lord, Lord Pearson, also asked what is so different now in the Commission? I am bound to point out that some of the Commissioners changed, and as far as I recall, some Members of the Committee were rather pleased with those changes. I am glad to see the noble Lord, Lord Pearson of Rannoch, nodding his head so vigorously.

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Not only have some of the Commissioners changed, but also, as we all acknowledged, it was a wake-up call over the way in which some parts of the Commission were being run. Again, we have had the opportunity of discussing that in the past so it is unfair for the noble Lord to say, "Nothing came out of that". Some things did change.
Lord Pearson of Rannoch: The sum of money that has gone missing is the same.
Baroness Symons of Vernham Dean: There may still be much wrong with the way in which the European Union is run. I have no difficulty in agreeing with the noble Lord, Lord Pearson, that some procedures still need to be tightened up. There are not necessarily questions of corruption or fraud to be answered—we have been over this before—but there are certainly questions in relation to the way in which the Commission ought to be run; that is, that it should be run more along the lines of accountability under which our own Civil Service operates.
Those are the sorts of things for which Her Majesty's Government have been pressing. So I freely acknowledge that we would wish to see many improvements in the way the Commission is run. But we ought at least to look to the improvements that have taken place, part of which is in the recognition that there are still some parts of the Commission which need to be considerably tightened up.
Lord Stoddart of Swindon: This has been a good and wide-ranging debate and I thank all those Members of the Committee who contributed to it. I thank the Minister for her firm and detailed reply.
The noble Lord, Lord Wallace, mentioned co-decision. Of course he approves of co-decision—the Liberal Democrats believe in federalism anyway.
Lord Wallace of Saltaire: I am grateful to the noble Lord for giving way. I was not aware that I had mentioned co-decision. If he wishes to bring it up of course I cannot stop him. But among the many things I said, that was certainly not one of them.
Lord Stoddart of Swindon: It may well be that I thought the noble Lord mentioned co-decision, because I certainly wrote it down.
Let me explain that co-decision is about taking real power away from this Parliament. What happens is that Ministers go across to Europe and, by QMV and after consultation with the European Parliament, they come to decisions which are made into law whether or not this Parliament agrees. If this Parliament objects, then the reply comes that this is European law and there is nothing we can do about it. That is why many of us are concerned about the extension of co-decision. It takes away from this Parliament the opportunity to have a full discussion and full examination of what is happening in Europe, very often behind closed doors.
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The noble Lord, Lord Wallace, also mentioned the quadrupling of the movement of people since 1973 when we entered the Common Market, as it then was. He brings that forward as a reason why we should have more co-operation. Nobody is concerned about voluntary co-operation. We are concerned about the imposition of laws upon this country without our own Parliament agreeing to them. We want co-operation, yes; but a country called Europe, no.
The noble Lord, Lord Howell, said that the Conservative Party was closely examining the possibility of returning to Westminster some of the powers that we lost. I welcome that. Indeed, I shall look forward to hearing from the noble Lord and the Conservative Party what powers they intend to ensure are returned to Westminster if they are voted back into government. Most of the powers which we lost were lost under previous Conservative governments. So I am pleased that the sinners are repenting and hope that they will repent so far that virtually all the powers that we lost to the European Union are returned. Then we can get back to a real Europe of voluntary co-operation between nation states, which we lost.
The Minister mentioned the Prime Minister's Warsaw speech. In that speech he envisaged a new organisation—a senate—which would be elected by the national parliaments. But that is what we had before 1978. In 1978 it was said that that structure did not work because the members of the national parliaments did not have time to do both jobs properly. Now we have come full circle and are told that what we had before 1978 is a perfectly workable system and that it is a pity we altered it. I note the noble Lord, Lord Wallace, shaking his head. But that was the previous system and is the system the Prime Minister wants to re-impose. That is what he appeared to be saying in his speech.
The Prime Minister also referred in his Warsaw speech to a super power in Europe but not to a super state. I do not quite see how one can have a super power without also having a super state. If he is going to develop that instead of having more integration, as he appeared to be advocating last Friday, then I am pleased that he has been converted. However, we shall have to wait and see.
We have had a good debate on this subject. I believe that it is probably the first one we have had on the 1978 Act and it has been worthwhile. Having heard the debate, I do not wish to continue to oppose the Question that Clause 3 stand part of the Bill. However, after having read the excellent contributions that have been made to the debate, I may wish to return to the matter on Report.
Clause 3 agreed to.
7.15 p.m.
Lord Blackwell Lord Blackwell moved Amendment No. 39:
After Clause 3, insert the following new clause—
"REFERENDUM
This Act shall only come into force after the provisions of the Treaty of Nice have been approved in a referendum by the people of the United Kingdom, conducted under procedures approved by the United Kingdom Parliament."
The noble Lord said: Amendment No. 39 proposes that the treaty should be approved in a referendum before it becomes part of UK law. I raised the question of whether a referendum was appropriate on Second Reading. I do not believe that we received an adequate response from the Government. I should like to pursue the issue again tonight in the hope of receiving a better response.
So far as I can tell, the Government's argument as to why they believe that a referendum would be inappropriate is as follows. First, they say that the treaty is vital to enlargement. Secondly, they say that, nevertheless, none of the individual measures is important. The over-used example of QMV on appointments to the Court of Auditors is trotted out as an example of what I believe the Minister referred to as the modest and sensible adjustments of which the treaty is full. Therefore, a referendum is inappropriate for what is largely a technical measure in the Government's eyes. I argue that the discussion in this Chamber, including the excellent discussion we have just had, demonstrate exactly the opposite.
First, I argue that the treaty, as we discussed at earlier stages in Committee, is not essential for enlargement, at least in the early stages, as Romano Prodi has been frequently quoted as admitting. I favour enlargement as a community of nation states within a single market, but not as a political union. I believe that most of the measures needed to enlarge a single market were already enacted in treaties in the 1980s.
Secondly, even if one concedes that some measures are needed to facilitate enlargement, the truth is—as has again been demonstrated over and over again in the debate—that most of the treaty is not about enlargement. A whole Christmas tree of measures is hanging on the coat-tails of a Bill which is advanced as being about enlargement but is primarily about other matters.
Thirdly, I argue that far from being modest and sensible adjustments that do not merit significant debate, the treaty contains a number of significant measures, including the removal of 39 national vetoes which individually and collectively amount to a significant further shift towards stronger governmental and institutional power at the centre of Europe versus the nation state. This is a treaty that is primarily about deepening, not enlarging, the European Union.
Therefore, fourthly, I argue that a referendum that requires the Government to explain and get approval for those policies, as opposed to proceeding by stealth, is fully justified. The fact that the Irish people rejected the treaty in a referendum shows that, when put to a national electorate, its acceptance is not a foregone conclusion.
Let me briefly expand on one or two of those points. On Second Reading and in subsequent debate I and others highlighted many examples of transfer of power in the treaty which have nothing to do with enlargement. I mentioned Article 137, for example, which extends the powers of the European Union to intervene by QMV to impose European Union policies
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on the social rights of workers. I mentioned Article 144, which sets up a new committee to monitor and report on social protection policies in each country and empowers that committee to hold direct dialogue with labour and business organisations in each country. I also mentioned Article 157, which extends the power of the European Union to promote state intervention in industrial policy—which was dubbed a "charter for meddlers" and has now moved to QMV and co-decision making.
On Second Reading I asked why those measures were in the treaty and what intentions lay behind the new powers. I do not believe that we were given a response to those questions. Either the Government do not know why those measures are in the Bill, in which case how can they advocate them, or they will not explain what the measures will be used for for fear that we and the country will not like that. Nor can they explain why these and countless other extensions of power are part of a treaty that masquerades as a treaty primarily about enlargement.
The debate in this Chamber has raised many other fears, for example, as regards the extension of European judicial powers over our judicial system and the drive towards European authority over a common foreign and defence policy which is enabled by the treaty. Last week we discussed the charter of fundamental rights which is referenced in the presidency conclusions and the declaration on the future of the Union attached to the treaty. The Minister told us that on the one hand the charter of fundamental rights had no legal standing and then agreed that it would, of course, be taken into account by European courts as evidence of the political intent behind legislation. That, presumably, is what is intended by the presidency conclusions when they state:
"The European Council would like to see the Charter disseminated as widely as possible amongst the Union's citizens … the question of the Charter's force will he considered later".
Therefore, significant issues are raised by the treaty and by some of the words and declarations around it. Even the proposals which are directly justified by reference to enlargement—for example, majority voting on senior Commission appointments; the proposal to hold all European Council meetings in the European capital of Brussels rather than in the host country; and the strengthening of the European Parliament—could equally well be seen as part of a progressive plan to turn the European Union from a coalition of nations within a free market into a single political state and government structure. They fit that pattern. Indeed, we have just discussed the future of European national parliaments. The declaration on the future of the Union states, somewhat condescendingly I feel, that,
"The next European conference will need to address the role of national parliaments in the European architecture".
It will consider what role we might be allowed to play. If there ever was a wake-up call that our destiny was being taken out of our hands, that sentence provides it.
But there are two sides to the debate; one can view the glass through opposite angles. There are those who regard people who raise concerns about the agenda for European integration as raising needless or exaggerated fears. The Prime Minister assures us that the nation state is secure and that we just need to pool a little sovereignty. Those on the other side of the argument regard those who view these developments with equanimity as hopelessly naïve, who have not learnt the lessons of history and who fail to hear or heed the rhetoric of those on the Continent who consistently call for the pace of political integration to be speeded up towards its ultimate goal. Both views are valid but a genuine debate needs to take place.
Those arguments and the treaty cannot be brushed aside as inconsequential. That is why I believe that there is a strong case for a referendum before the Bill is enacted—a referendum as provided under Part VII of the Government's own Political Parties, Elections and Referendums Act 2000. We passed that Act in order to provide for referendums on issues of significance. What is the provision intended for, if not for significant constitutional developments such as intergovernmental treaties? As my noble friend Lord Pearson has commented, once these treaties are ratified, they can be changed only by unanimity. They are not measures to be entered into lightly when there are significant differences of views about the significance of the treaties themselves and their implications.
If there is a view that this treaty represents a significant shift in powers, surely that should be explained and debated in the country at large. I hope that democrats on all sides of the Committee, whether for or against the proposals in the treaty, will agree that a healthier national view of Europe would pertain if these arguments were conducted openly rather than being brushed aside. Frankly, it is an insult for the Government to describe this treaty as nothing more important than procedures for electing members of the Court of Auditors.
If, having introduced the practice of referendums to the UK in their recent legislation, the Government oppose this amendment, I fear that I and other noble Lords will conclude that they do so not on principle, but because they fear that they may fail to win the support of the British people for changes that they do not want to explain and cannot defend. The Irish electorate—probably one of the most pro-European in the European Union—has already had the chance to vote on this issue, and they rejected it. I believe that the British people deserve that opportunity too. I beg to move.
Lord Watson of Richmond: I confess to a sense of disappointment because, as some noble Lords know, my approach to the European Union is that by pooling sovereignty, in effect, we increase sovereignty. Therefore, I had hoped that the Treaty of Nice would be more ambitious than it is. In some ways it is a rather disappointing treaty to those who believe that
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European integration and co-operation should take a decisive rather than a timid step forward. So I am disappointed.
The fact is that the treaty is here, and it is a necessary treaty if we are not to lose the pace of enlargement. Earlier today I read the report on the institutional implications of enlargement, which was produced in 1999 by the so-called three wise men, one of whom is a Member of this House, the noble Lord, Lord Simon. They clearly had ambitions for the Treaty of Nice that would have been far more radical, and had they occurred there may have been a case for a referendum. We on these Benches were the first political party in the United Kingdom to make a case for a referendum on the European single currency, which is now the policy of Her Majesty's Government. We also argued for a referendum on the Treaty of Maastricht because we believe that that treaty made fundamental changes; for example, the introduction of the concept of European citizenship which had constitutional implications. I record with some disappointment that the Treaty of Nice does not justify that.
To talk about the Irish referendum is somewhat misleading because the Irish constitution requires referendums in the case of international treaties. We do not have that provision and so we are not bound by that. It is hard to see why that should be applied in this case.
I suspect that a call for a referendum is motivated by other matters. I remind the House of what the noble Lord, Lord Pearson of Rannoch, said on the previous day in Committee on this Bill: that he hates the European Union and everything that comes out of it. If one hates the European Union and everything that comes out of it, and if one sees the European Union as a glorified Gestapo—the noble Lord, Lord Stoddart, referred to living under the cosh of the European institutions—nothing less than a referendum on any proposal for any increase in European co-operation would be fully justified. As that is nonsense, we should have no problem in rejecting this amendment.
Lord Pearson of Rannoch: Perhaps it would be appropriate if I spoke after the interesting words of the noble Lord, Lord Watson of Richmond.
Lord Acton: Briefly!
Lord Pearson of Rannoch: I do not necessarily have to be brief. We are in Committee. There is at least five minutes before any of us expects supper.
When the noble Lord, Lord Watson, takes me to task for saying that I hate the European Union and everything that flows forth from Brussels, I should put those comments in the context in which I made them. I was dealing with the word "Europhobic", and how some of us are accused of it when in fact we are phobic about, or we hate the European Union and everything that comes forth from Brussels; not the continent of European nations which we love. I used the word "hate" because the word "phobic" has an irrational note to it, whereas the phrase "intensely dislike" or the word "hate" are entirely rational. That is why I used

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the word "hate". However, it would not be fair to associate my remarks with the remarks of my noble friend Lord Blackwell, or the Conservative Party generally.
Having put that matter to rest, perhaps, in support of the amendment of my noble friend, I can express the hope that no noble Lord will say that the British people have already been asked about our membership of the European Union because we voted to stay in the European Common Market in 1975. There has never been a referendum in this country on our membership of the European Union. There was a referendum in 1975, but the Prime Minister of the day, Mr Harold Wilson, put a letter through every letterbox in the land saying that there was a threat to employment in Britain from the movement in the Common Market towards an economic and monetary union which could have forced us to accept fixed exchange rates for the pound and restricting industrial growth, so putting jobs at risk. He went on to say that that threat had been removed.
Of course it was not removed. As we know, it returned to bite later, and so far we are just avoiding it. But the position of the Government on our membership of the single currency is not clear at all. The Prime Minister of the day ensured every household in the land that there was no loss of sovereignty involved in voting to stay in the free trade area, the Common Market, in 1975. Since then we have seen the Single European Act 1985 that gave all our industries, all our commerce and our environment to the qualified majority vote in Brussels.
Next came Maastricht in 1992 which was called the Treaty on European Union. There can be no doubt about that. As noble Lords know, it introduced economic and monetary union and was a treaty on European union. That was its name. In 1997 we had Amsterdam with many safeguards over national sovereignty and with many matters of national sovereignty being passed to the qualified majority voting in Brussels. Now we have Nice.
It is reasonable to suggest that we should finally have a referendum on our membership of the European Union. If the amendment of my noble friend were accepted, I believe that it would require an explanation to the British people of exactly where we are. You could not have an amendment on Nice alone; you would have to tell the British people what lies behind Nice, which they have never been told. They would be voting on Nice as it is added to the Treaty on European Union and the treaty establishing the European Community, loosely known as the Treaties of Rome.
If they refuse this amendment, I do not believe that it is possible, or honourable, for the Government to say that they want a good debate on the future of the European Union and our place in it.
Lord McIntosh of Haringey: In light of what the noble Lord, Lord Pearson, has said about there being five minutes until supper, it may be convenient for the Committee if I clarify the position. It has been agreed
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between the usual channels that we shall continue this debate without interruption until the Committee stage is completed; we shall then take the two orders and continue, without an adjournment during pleasure, to the Committee stage of the Human Reproductive Cloning Bill.
Lord Pearson of Rannoch: Of course, I accept that. I find it slightly inconvenient. This morning I took the trouble to visit the Government Whips' Office, where I was assured that we would he given the usual hour for supper. It is quite inconvenient not to have it.
7.30 p.m.
Lord Harrison: When I was a Member of the European Parliament, the most dispiriting words that I ever heard when someone rose to speak were: "Brevamente","Brièvement" or "May I speak briefly". However, I shall try to do that myself tonight. First, I ask Members opposite—especially the noble Lord, Lord Blackwell—why at the time of the Single European Act and, indeed, the Maastricht Treaty our electorate was not given the opportunity to vote in a referendum. Secondly, perhaps I may ask the noble Lord, Lord Blackwell, and others who support him. whether he considers that earlier this year the most important referendum of all took place; namely, a general election in which not only the party that won the election but a second major party in the United Kingdom spoke vociferously for the Nice Treaty and for the Nice Treaty being ratified under the new government. I believe that the Committee would welcome clear, unambiguous answers to those two questions.
Lord Pearson of Rannoch: I shall answer the noble Lord. When the Labour Government forced through the Amsterdam treaty, it was one of 177 commitments in the Labour manifesto. The Nice Treaty may have been mentioned in the Labour manifesto but, again, it was one of the best part of 200 commitments in that manifesto. Let us not forget that only 59 per cent of the population turned out to vote, and I believe that only a minority, not a majority, voted for the party opposite. Therefore, to pretend that the general election was in any way a ringing public endorsement of the Treaty of Nice or, indeed, of the Treaty of Rome is a little wide of the mark.
Lord Willoughby de Broke: During recent months we have heard a great deal from Ministers about the need to reconnect—I believe that that is the word that is currently popular in relation to Europe—with voters in the European Union on European Union matters. If that is really the case, I do not understand how the Government can avoid supporting the amendment in the name of my noble friend Lord Blackwell or, indeed, that in the name of the noble Lord, Lord Phillips, which we shall debate later this evening. My belief is that these two amendments are complementary. They are the only amendments that we have discussed so far in our three days of the Committee stage which are intended to make the Nice

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Treaty more intelligible to the people of this country and to give them any chance of having a say in what the Government are doing in their name.
I agree that that is an heroic task. We have heard time and again how incomprehensible and obscure this treaty is. In that context, I was interested to see that even the Minister, the noble Lord, Lord McIntosh, was using not an official text—I do not believe that there is an official integrated text on the Maastricht Treaty—but the very useful volume produced by the British Management Data Foundation. Without that, I do not believe we should have been able to have a Committee stage or a sensible debate about the treaty. Therefore, I believe that those responsible for that volume are due a vote of thanks from this House. There are two volumes, but I gather that the first was deemed to be too dangerous for general circulation because it analysed the treaty.
If Ministers and those inside Westminster must rely on an independent body to produce a comprehensible version of the Treaty of Nice, I believe that further clarification should be given so that people outside Westminster can understand it. Of course, my noble friend Lord Pearson is quite right. The mere mention of the Nice Treaty and the manifesto which the noble Lord, Lord Harrison, prayed in aid cannot possibly be conceived of as a ringing endorsement of everything that was contained in this volume. That really will not wash.
In our debates, the "shorthand" reference to the Nice treaty being all about enlargement—no Nice treaty; no enlargement—has been shown to be a total sham. I believe that it has been said that approximately 5 per cent of the total number of articles in the Nice Treaty are about enlargement. The remainder are about giving away more powers to the Commission or to the corporate bureaucratic complex of the EU. As my noble friend Lord Blackwell pointed out, we are giving away more power to the Commission in 39 areas—some of them very important. The Commission may have been reformed but we do not know by how much. But, of course, the Government believe that it is a good idea to give away those powers; otherwise, presumably, they would have opposed the Nice Treaty, which gives away the powers. Everyone has admitted to and agreed that, and the Government want more of it.
However, if we do not particularly warm to the idea of the Commission being given those powers, we can at least be thankful for the existence of the President of the European Commission, Signor Prodi. He is quite clear. He has said, "We want more tax harmonisation; that is what Europe is about. We want complete tax harmonisation. Yes, the European rapid reaction force is in fact an army. And, yes, our aim is European political union". I sometimes believe that if Mr Prodi did not exist, we should have had to invent him.
Therefore, if the Government are serious in saying that they want to get the European Union and the EU institutions closer to the people, surely my noble friend's amendment provides the opportunity for them to do just that. The amendment in the name of the
80
noble Lord, Lord Phillips—I know that we are not debating it now but I believe that it is important to link them together—will explain what the Nice Treaty is all about. As my noble friend Lord Pearson correctly pointed out, the Nice Treaty cannot be explained in isolation. It is simply an amendment of the previous European Union treaties. Therefore, any explanation of what Nice is about must, by definition, include the Amsterdam Treaty, the Maastricht Treaty and the treaty on the Single European Act.
Therefore, after a period of debate, when that has all been clarified in the words of the amendment tabled by the noble Lord, Lord Phillips, which refers to clarity, plain English and the term "impartial", which, I agree, is terribly important, surely we should then call a referendum in order to obtain the agreement of the British people to what this Government propose to give away in their name. The noble Lord, Lord Stoddart, was absolutely right when, in speaking to his own amendment earlier, he said that elected governments have only a mandate. Powers are given in trust to the elected government of the day. They are only lent; they do not belong to a government to dispose of as they will. If the Government propose to transfer ever more powers from their elected Members at Westminster, surely the voters should confirm that, indeed, they want to give those extra powers away.
Surely there must come a time when we come clean about the creeping and ever-increasing incremental constitutional changes that we have foisted on the British public through the succession of European treaties. As has been pointed out this evening, we have not had a vote on our membership of the European Union. We have had a vote on whether we want to stay in the Common Market, but that is a different matter.
We are constantly being put to the old salami-slicing technique. "Why strain at this gnat of the Nice Treaty", we are asked, "when you have swallowed the camel of previous treaties?". Of course, some of us did not want to swallow the camel of previous treaties but we were never asked. We never had a referendum. However, I believe that a moment must come when the people are asked: "Do you want to continue with this handover of powers?". I believe that that moment is now, and I support my noble friend's amendment.
Lord Stoddart of Swindon: There was a time when I argued very clearly against referendums. I did so because I believed in the supremacy of Parliament. I believed that we were a parliamentary democracy and that Parliament could be trusted to ensure that it did not give away its powers but would uphold our constitution under all circumstances.
That was what I believed, and I argued it from public platforms and in the House of Commons. Clearly, however, the situation has now changed because Parliament has given away to other institutions and other countries the power of supremacy—of sovereignty. The Prime Minister said that sovereignty can be pooled, but I do not believe that it can be. One either has sovereignty or one does

81
not. Nevertheless, we have been pooling the sovereignty that belongs to the British people and giving it away to other institutions.
We have arrived at the situation in which our constitution has so altered that the basis on which laws are made and on which the Crown is advised no longer persists. As I understand it, the constitutional arrangement has always been that Her Majesty acts on the advice of her Ministers. Now, she can no longer do that because under QMV her Ministers can be outvoted by Ministers from other countries. Our constitution has been undermined even to the extent that Ministers do not give advice off their own bat; that advice has to be qualified by decisions that are taken outside our Parliament and this country.
I have reluctantly come to the conclusion that there has to be some check on what Parliament does in relation to its powers. Since we do not have a proper second chamber with the power to stop the first chamber from handing over powers, the only check is the referendum. That is why the noble Lord, Lord Blackwell, who argued his case extremely well and cogently, should be supported tonight if he presses his amendment to a vote.
As has already been said, we should have had a referendum before we joined the common market. The Prime Minister, the government and Parliament of the day had no mandate; the mandate that was asked for by Mr Heath was to negotiate—no more and no less. He had no mandate to take us into the Common Market or to sign the Treaty of Rome, from which all other treaties have come. That is when we should have had a referendum. My guess is that if we had done so then, the British people would not have agreed to go into the Common Market.
We should also have had a referendum on the Single European Act and on the Maastricht Treaty, which translated that Act into tablets of stone. Those of us in this House who were interested in the matter at that time gave this House an opportunity to vote on whether to have a referendum—the other House did not have such an opportunity. Those noble Lords who were around at that time will recall that the two Front Benches had agreed to dispose of the Maastricht Treaty in about three or four days but that the Maastricht Study Group—of which I was the chairman and the noble Lord, Lord Pearson, was deputy chairman—ensured that this House discussed the treaty in 11 days rather than three or four days. I believe that noble Lords received some education during that debate. Unfortunately, the opportunity that was given to the House to have a referendum on the Maastricht Treaty was rejected.
We may have an opportunity tonight to vote on what is perhaps a less important treaty. I hope that noble Lords will correct the mistake that was made in 1992.
7.45 p.m.
Lord Howell of Guildford: The amendment that was moved by my noble friend Lord Blackwell should be taken seriously. It is correct to say that there were not
82
referenda on previous treaties but, as we move up the ladder of centralisation towards the goal of political union, it will be increasingly hard for governments—this Government or any other—to keep from people the fact that major constitutional redistributions of power are taking place. Whether we call that "pooling of sovereignty" or "moving into a new kind of network" is a matter for debate. A new pattern of cards is being dealt. A strong case can be made for saying that a better and more direct means of reference to an increasingly empowered and informed public will be necessary.
The Nice Treaty has not produced vast popular excitement and debate. As my noble friends have pointed out, no one appears to be very informative about the treaty's implications. Some say that it is vastly important but Ministers say the opposite—they say that it is small but useful. It could be called the unknown treaty—it is an unexplored, unknown and unrevealed piece of treaty-making. Tucked away inside it are many important changes which will affect to a remarkable degree everyone's daily lives and the way in which law is made in this country.
Although we are passing a strong illuminating beam over the Bill, it may be too late to urge that a referendum should be included on this occasion. However, we are moving towards constitutional changes: I refer to the Laeken Council, the convention, in which no one will have much of a say, and the meeting of 2004. All of us—certainly the Government—should he prepared to consider a referendum in future.
It is a sad fact that "referendum" has become a dirty word in Europe-building circles. The chattering classes of Europe, if I may call them that, are terrified of referenda—they saw what went wrong in Denmark and Ireland. I heard it said in the august portals of the Foreign and Commonwealth Office only last week that, if there was a referendum today in Poland on whether that country should continue its membership of the EU, it would be lost. We are moving into an extraordinary stage in which the legitimacy of the EU and of new treaties is so weak that the people who want unity do not dare to have a referendum for fear that they will lose it. That is not a healthy position and it should be an enormous cause for concern for the Government.
We have yet to debate some very important issues. Although my noble friends have a very good case, I should not necessarily recommend that they push the amendment further; that, of course, is entirely up to them. However, the basic argument is that we have moved into an age in which such steps cannot be taken by governments without referenda or proper democratic involvement in the relevant constitutional implications; the age of not doing that has passed. The age of democracy is coming, and the Government had better prepare for it; otherwise, they will get a nasty shock.
Baroness Symons of Vernham Dean: We have had a full debate on this issue. I was looking forward to the arguments that would be adduced in support of the amendment, and I was not disappointed.

83
The noble Lord, Lord Blackwell, told us that Nice makes so many changes of such major constitutional significance that we have to hold a referendum on whether or not to ratify it. He was supported by the noble Lord, Lord Willoughby de Broke, my noble friend Lord Stoddart and the noble Lord, Lord Pearson of Rannoch, except that the noble Lord, Lord Pearson of Rannoch, wanted to have a vote on whether or not we should stay in the EU in the first place. To a certain extent the noble Lord, Lord Blackwell, was supported by the noble Lord, Lord Howell, but not to the extent of pressing for a vote.
I was interested to see that the amendment was not tabled in the name of the Opposition Front Bench as was a similar amendment in another place. However, I regret that some Members on the Opposition Benches are still pushing heavily on this argument, particularly in the light of their own party's record on this matter. European Union treaties such, as the Treaty of Nice, are ratified by each member state in accordance with their own constitutional requirements. As the noble Lord, Lord Watson, stated, in Ireland it is not only normal practice but a constitutional requirement to hold a referendum on EU treaties before ratification. In some countries, such as Denmark, new treaties require a referendum only if they involve a transfer of sovereignty. It is significant to note that in the case of Nice, Denmark did not hold a referendum. The Danish authorities were clear that Nice did not represent a transfer of authority. That is a point on which the party opposite did not comment.
In the majority of member states the traditional constitutional process for ratifying EU treaties is by parliamentary procedure, as, indeed, it is in Britain. As has been said, Sir Edward Heath and the Conservative Party did not hold a referendum on whether or not Britain should join the European Community. We joined in 1973 when Parliament, after long and careful debate, voted in favour and passed the necessary legislation. Nor did we depart from the accepted constitutional procedures when we ratified the Treaty of Amsterdam. I remember standing for many hours in your Lordships' House—indeed, I believe we had over 50 hours in Committee—on that particular treaty to debate the issues. Many of your Lordships were present at that time.
Furthermore, when the party opposite negotiated the Single European Act and the Maastricht Treaty, both of which introduced far more fundamental treaties than does the Nice Treaty, the then Government saw no need to trouble the British people with a referendum on whether or not those treaties should be ratified. It is worth reflecting on the far-reaching implications of the Maastricht Treaty. As some noble Lords have made clear, it established the European Union and citizenship of the Union. It set up a pillar structure and extended QMV to nearly 30 new articles. It substantially extended the powers of the European Parliament and established arrangements for economic and monetary union and the euro. Not only is that a lengthy list; it is a weighty list which the present Government support. My point
84
is that whatever noble Lords may think of its substance or length, I believe they will have to admit that that was a significant series of changes. However, the then Government, many of whom are on the Benches opposite, or at least represent the Benches opposite, did not think it deserving of a referendum at the time. The then Prime Minister, John Major, said,
"I am not in favour of a referendum in a parliamentary democracy. I do not propose to put one before the British people".
There are times when a referendum is appropriate; when there is important constitutional change such as there has been recently in Wales and Scotland. However, there is an obvious example of a major constitutional issue which is of such importance that the people of Britain should be given a chance to decide; that is, Britain's membership of the euro. That is an odd position for some Members of the Benches opposite to put themselves in. They oppose a referendum on an important constitutional issue such as the euro but then advocate a break with established constitutional procedure by pressing for one on this treaty.
The noble Lord, Lord Blackwell, said—we go back to the point—that the treaty is not necessary for enlargement. The Government contend that it is necessary for successful enlargement. Nice is not a legal pre-requisite for enlargement. That was a point I made both in opening and closing the Second Reading debate. Of course it is possible to proceed with enlargement, but only in theory. We need a treaty for successful enlargement. The noble Lord then went on to quote me on the charter of rights. He said that I said that it had no legal standing. I did not say that. I said that the charter of rights was not legally binding. The noble Lord is welcome to quote me but it behoves him to quote me correctly.
Lord Blackwell: I am grateful to the Minister for that clarification. I accept her substitute words, or the words she said, but the implication is the same.
Baroness Symons of Vernham Dean: No, they are clearly not the same. If the noble Lord really does think that, it is no wonder we are in a muddle. I assure the noble Lord that the words "not legally binding" are not the same as "having no legal standing". He need not take my word for that. I believe that any reputable lawyer would give a similar view.
Lord Pearson of Rannoch: I thank the Minister for giving way. Perhaps I may say that, on the other hand, she agreed that the Luxembourg Court was free to take the charter into account in its judgment as from now, as it is.
Baroness Symons of Vernham Dean: That is, indeed, the difference between legally binding and being taken into account. We have gone over this matter several times in your Lordships' House, but by all means let us do so again.
The noble Lord, Lord Blackwell, then said that we were proceeding by stealth. I found that a remarkable charge. We published a White Paper entitled Reform

85
for Enlargement in February 2000 before the start of the IGC. We have had regular debates in both Houses. My right honourable friends in another place have gone before all the parliamentary committees both in this House and another place. Parliament has had a detailed explanatory memorandum. There is also a published leaflet setting out all the issues. I would show one to Members of the Committee but I know that that is against the protocols of this place. However, I shall certainly give one to the noble Lord, Lord Blackwell, and, indeed, one to the noble Lord, Lord Willoughby de Broke, who is also keen on people having as much information as possible.
I, too, have held meetings on the 2004 IGC and on the Bill. Perhaps I may say that such meetings were noticeable for the lack of noble Lords attending. That is one of those things. One can give people information but even Members of the Committee do not attend, with the notable exception of the noble Lord, Lord Willoughby de Broke. Certainly, he was there but he will know that many of his colleagues were not.
Members of the Committee were also told that the matter was merely mentioned in the Labour Party manifesto. The treaty was published on 26th February. There was an election at the beginning of June. In our manifesto, the Labour Party said:
It is vital that we ratify the Treaty of Nice which is essential for enlargement; Labour in government will do so".
That is not merely a mention; it is a real commitment. The party opposite made rather a big issue of Europe during the general election. I hardly think it was a forgotten issue. The party opposite said that it would have a referendum if it won the election; it did not. This party said that it would ratify the treaty and we did, indeed, win the election.
Lord Pearson of Rannoch: I thank the Minister for giving way. The point we made in debate in Committee was not that the Treaty of Nice was not mentioned in the Labour Party manifesto but that it was only one of the better part of 200 commitments; that only 59 per cent of the people voted in the general election and a minority of the people supported the Labour Party. We really want to underline the fact that one cannot take the result of the general election as any sort of approval by the British people for this treaty.
Baroness Symons of Vernham Dean: In saying that, the noble Lord is flying in the teeth of every constitutional convention of this country. I was careful to write down what was said. The word used was "mentioned". I do not think that a commitment is a mention. It was specific, clear and unequivocal. As I am sure the noble Lord noticed, the Labour Party clearly won the election as opposed to his party, which said that there would be a referendum on this issue and which did not win the election.
This is a matter which Parliament should decide. It is a matter of national importance. However, it is our convention that we decide such matters by the parliamentary democracy in which we live. I believe that in our centuries-old system people elect representatives to make this sort of decision on their
86
behalf. We have had, rightly, the task of scrutinising this legislation closely, as, indeed, we are doing now. Our constitutional system gives Parliament the right to accept or reject the treaty in the interests of Britain. The Government believe that it is right to follow that system, just as previous governments have followed it in the past. Either we believe that the other place and your Lordships' House are competent to make decisions and to pass legislation, or we do not. The Government believe that we are. For that reason, I ask Members of the Committee to reject the amendment.
Lord Blackwell: I shall be brief. I thank those Members who have taken part. but I am not satisfied or mollified by the Government's response. They have not established that the treaty contains purely technical measures for enlargement as opposed to measures about deepening the Union. They have not explained why such a treaty requires so many powers around extensions of QMV and parliamentary competency or why it contains so many measures about reinforcing central institutions. Nor have they explained why, given the significance of those changes, it is inappropriate to hold a referendum.
The Minister, together with the noble Lord, Lord Watson of Richmond, made great play of the fact that there were no referendums on Maastricht and earlier treaties. In those days, we did not have the Political Parties, Elections and Referendums Act 2000.
Furthermore, there is the point about the Opposition not having a referendum when in government. It is purely a party political point based on the fact that the Conservative government of the time did not hold a referendum and therefore no Conservative can call for one now. That is a very weak argument on a constitutional issue of this importance. I put that to one side.
The noble Lord, Lord Watson of Richmond, made the point that the Irish only had a referendum because it was in their constitution. Again, it is rather odd to argue that because the Irish only held a referendum because they were forced to means that because we are not forced to we should not hold one. We have a right to decide whether it is an issue that calls for a referendum under the Act that Parliament has passed for that purpose.
The Minister and the noble Lord, Lord Harrison, made the point that the Labour election manifesto contained pledges on the issue. The Minister read out the passage. Similarly, the previous Labour Party manifesto had commitments about devolution. That did not stop us from having referendums on those issues.
The Minister makes arguments about parties' past records. If the party opposite had written a manifesto with no change from any policy it has previously advocated its last manifesto would have been rather thin.
I am not satisfied with the Government's response. This is an issue of significant constitutional importance. It is one on which this House has a right, indeed an obligation, to take a view and to try to hold

87
the Government to account. I know that there is other pressing business, but I should like to test the opinion of the Committee.
8.3 p.m.
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 11; Not-Contents, 142.

Division No. 1

CONTENTS

Bell, L.

Pearson of Rannoch, L.

Blackwell, L.[Teller]

Stoddart of Swindon, L.

Strange, B.

Mar, C

Waddington, L.

Masham of Ilton, B.

Warnock, B.

Monson, L.

Willoughby de Broke, L.[Teller]

NOT-CONTENTS

Acton, L.

Gibson of Market Rasen, B.

Addington, L.

Goldsmith, L.

Ahmed, L.

Gordon of Strathblane, L.

Alli,L.

Goudie, B.

Amos, B.

Gould of Potternewton, B.

Andrews, B.

Grenfell, L.

Ashton of Upholland, B.

Grocott, L.

Bach, L.

Hamwee, B.

Barker, B.

Hardy of Wath, L.

Bassam of Brighton, L.

Harris of Haringey,L.

Bernstein of Craigweil, L.

Harris of Richmond, B.

Blackstone, B.

Harrison, L.

Borrie, L.

Haskel, L.

Boston of Faversham, L.

Hayman, B.

Bradshaw, L.

Hilton of Eggardon, B.

Brennan, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Hooson, L.

Brookman, L.

Howe of Idlicote, B.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Hoyle, L.

Carter, L.[Teller]

Hughes of Woodside, L.

Chandos, V.

Hunt of Kings Heath, L.

Clark of Windermere, L.

Hylton, L.

Clarke of Hampstead, L.

Irvine of Lairg, L. (Lord Chancellor)

Cohen of Pimlico, B.

Corbett of Castle Vale, L.

Janner of Braunstone, L.

Craig of Radley, L.

Jones, L.

Crawley, B.

Kirkhill, L.

Dahrendorf, L.

Layard, L.

Darcy de Knayth, B.

Lea of Crondall, L.

David, B.

Lipsey, L.

Davies of Coity, L.

Lockwood, B.

Davies of Oldham, L.

Lofthouse of Pontefract, L.

Dean of Thornton-le-Fylde, B.

Macdonald of Tradeston, L.

Desai, L.

Mclntosh of Haringey, L. [Teller]

Dholakia,L.

Dixon, L.

Mclntosh of Hudnall, B.

Donoughue, L.

MacKenzie of Culkein, L.

Dormand of Easington, L.

Maddock, B.

Dubs, L.

Massey of Darwen, B.

Elder, L.

Merlyn-Rees, L.

Evans of Parkside, L.

Michie of Gallanach, B.

Falconer of Thoroton, L.

Milner of Leeds, L.

Farrington of Ribbleton, B.

Mitchell, L.

Faulkner of Worcester, L.

Moynihan, L.

Filkin, L.

Newby, L.

Fyfe of Fairfield, L.

Northfield, L.

Gale, B.

Northover, B.

Geraint, L.

O'Neill of Bengarve, B.

88

Oakeshott of Seagrove Bay, L.

Simon, V.

Patekh, L.

Smith of Clifton, L.

Patel, L.

Stone of Blackheath, L.

Patel of Blackburn, L.

Symons of Vernham Dean, B.

Pendry, L.

Taylor of Blackburn, L.

Pitkeathley, B.

Temple-Morris, L.

Plant of Highfield, L.

Thomas of Gresford, L.

Radice, L.

Thomas of Walliswood, B.

Ramsay of Cartvale, B.

Tope L.

Randall of St. Budeaux, L.

Turnberg, L.

Razzall, L.

Uddin, B.

Wallace of Saltaire, L.

Redesdale, L.

Walmsley, B.

Rendell of Babergh, B.

Warner, L.

Renwick of Clifton, L.

Warwick of Undercliffe, B.

Richard, L.

Whitaker, B.

Rodgers of Quarry Bank, L.

Whitty, L.

Rooker, L.

Wilkins, B.

Roper, L.

Williams of Crosby, B.

Sainsbury of Turvilie, L.

Williams of Elvel, L.

Scotland of Asthal, B.

Williams of Mostyn, L. (Lord Privy Seal)

Scott of Needham Market, B.

Sharp of Guildford, B.

Williamson of Horton, L.

Shutt of Greetland, L.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.14 p.m.
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 40:
After Clause 3, insert the following new clause—
"WESTERN EUROPEAN UNION AND NOF ATLANTIC TREATY ORGANISATION
This Act shall not come into effect until Her Majesty's Government has laid before Parliament a report showing implications for the Western European Union and the Northern Atlantic Treaty Organisation, for the future functioning of these organisations, and for the United Kingdom's role therein, of—

(a) Article 1, paragraph 2 of the Treaty of Nice, revising Article 17 of the Treaty on European Union, and

(b)Article 1, paragraph 5 of the Treaty of Nice, revising Article 25 of the Treaty on European Union."

The noble Lord said: I beg to move this amendment, on which I wish to test the opinion of the Committee.
On Question, Whether the said amendment (No. 40) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 136.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Cope of Berkeley, L. [Teller]

Anelay of St Johns, B.

Craig of Radley, L.

Astor of Hever, L.

Dean of Harptree, L.

Attlee, E.

Dixon-Smith, L.

Bell, L.

Elton, L.

Biffen, L.

Ferrers, E.

Blackwell, L.

Fookes, B.

Blaker, L.

Geddes, L.

Blatch, B.

Glentoran, L.

Boardman, L.

Gray of Contin, L.

Bridgeman, V.

Greenway, L.

Brooke of Sutton Mandeville, L.

Harris of Peckham, L.

Brookeborough, V.

Henley, L.

Brougham and Vaux, L.

Higgins, L.

Burnham, L.

Hooper, B.

Buscombe, B.

Howe, E.

Carnegy of Lour, B.

Howell of Guildford, L.

89

Hunt of Wirral, L.

Pearson of Rannoch, L.

Jenkin of Roding, L.

Peel, E.

Kilclooney, L.

Pilkington of Oxenford, L.

Kimball, L.

Plumb, L.

Kirkham, L.

Plummer of St. Marylebone, L.

Liverpool, E.

Rawlings, B.

Lyell, L.

Renton, L.

McColl of Dulwich, L.

Seccombe, B. [Teller]

Mancroft, L.

Sharples B.

Mar, C.

Shaw of Northstead, L.

Skelmersdale, L.

Marlesford, L.

Stewartby, L.

Masham of Ilton, B.

Stoddart of Swindon, L.

Mayhew of Twysden, L.

Strange, B.

Monro of Langholm, L.

Strathclyde, L.

Monson, L.

Trefgarne, L.

Moynihan, L.

Vivian, L.

Northesk, E.

Waddington, L.

Norton of Louth, L.

Wilcox, B.

Park of Monmouth, B.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Grocott, L.

Addington, L.

Hamwee, B.

Ahmed, L.

Hardy of Wath, L.

Alli, L.

Harris of Haringey, L.

Amos, B.

Harris of Richmond, B.

Andrews, B.

Harrison, L.

Ashton of Upholland, B.

Haskel, L.

Bach, L.

Hayman, B.

Barker, B.

Hilton of Eggardon, B.

Bassam of Brighton, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Hooson, L.

Blackstone, B.

Howe of Idlicote, B.

Borrie, L.

Howells of St. Davids, B.

Boston of Faversham, L.

Hoyle, L.

Bradshaw, L.

Hughes of Woodside, L.

Brennan, L.

Hunt of Kings Heath, L.

Brooke of Alverthorpe, L.

Hylton, L.

Brookman, L.

Irvine of Lairg, L. (Lord Chancellor)

Burlison, L.

Campbell-Savours, L.

Janner of Braunstone, L.

Carter, L. [Teller]

Jones, L.

Chandos,V.

Kirkhill, L.

Clark of Windermere, L.

Layard, L.

Clarke of Hampstead, L.

Lea of Crondall, L.

Cohen of Pimlico, B.

Lipsey, L.

Corbett of Castle Vale, L.

Livsey of Talgarth, L.

Crawley, B.

Lockwood, B.

Dahrendorf, L.

Lofthouse of Pontefract, L.

Darcy de Knayth, B.

Macdonald of Tradeston, L.

David, B.

Mclntosh of Haringey, L. [Teller]

Davies of Coity, L.

Davies of Oldham, L.

Mclntosh of Hudnall, B.

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Desai, L.

Maddock, B.

Dholakia, L.

Massey of Darwen, B.

Dixon, L.

Merlyn-Rees, L.

Donoughue, L.

Michie of Gallanach, B.

Dormand of Easington, L.

Mitchell, L.

Dubs, L.

Newby, L.

Elder, L.

Northfield, L.

Evans of Parkside, L.

Northover, B.

Falconer of Thoroton, L.

Oakeshott of Seagrove Bay, L.

Farrington of Ribbleton, B.

Parekh, L.

Faulkner of Worcester, L.

Patel of Blackburn, L.

Filkin, L.

Pendry, L.

Fyfe of Fairfield, L.

Pitkeathley, B.

Gale, B.

Plant of Highfield, L.

Gibson of Market Rasen, B.

Radice, L.

Goldsmith, L.

Ramsay of Cartvale, B.

Gordon of Strathblane, L.

Randall of St. Budeaux, L.

Goudie, B.

Razzall, L.

Gould of Potternewton, B.

Redesdale, L.

Grenfell, L.

Rendell of Babergh, B.

90

Richard, L.

Temple-Morris, L.

Rodgers of Quarry Bank, L.

Thomas of Gresford, L.

Rooker, L.

Thomas of Walliswood, B.

Roper, L.

Tope, L.

Sainsbury of Turville, L.

Turnberg, L.

St. John of Bletso, L.

Wallace of Saltaire, L.

Sawyer L.

Walmsley, B.

Scotland of Asthal, B.

Warner, L.

Scott of Needham Market, B.

Warnock, B.

Whitaker, B.

Sharp of Guildford, B.

Whitty, L.

Shutt of Greetland, L.

Wilkins, B.

Simon, V.

William's of Crosby, B.

Smith of Clifton, L.

Williams of Mostyn, L. (Lord Privy Seal)

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Williamson of Horton, L.

Taylor of Blackburn, L.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.25 p.m.
[Amendment No. 41 not moved.]
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 42:
After Clause 3, insert the following new clause—
"EFFECTS OF THE TREATY OF NICE
Within three months of the ratification by Her Majesty's Government of the Treaty of Nice amending the Treaty on European Union and the Treaty establishing the European Community, the Government shall lay before both Houses of Parliament a White Paper on the economic, political and constitutional developments arising therefrom."
The noble Lord said: The intention of the new clause is not very different from those expressed earlier by some of my noble friends when urging that there was a case for a referendum. The basic proposition is the same in this case. The Nice Treaty is an unknown treaty. It will have constitutional effects and I do not believe that anyone can deny that. Some people may say that they are small and some may say that they are large. It will carry the principle of qualified majority voting: that is, voting by the Council of Ministers by a majority on matters which will then go straight into the laws of our land or travel through secondary legislation into our regulations. Furthermore, the present Government are contemplating downgrading the system by which secondary legislation passes through the two Houses of Parliament.
All those issues make it ever more imperative that there should be the widest possible knowledge and understanding about what is happening and what are the effects of the treaty. During the debate we heard read out the list of areas in which qualified majority voting has been extended. They cover matters which are close to the everyday lives of the citizens of the whole of Europe, certainly those of the United Kingdom. They cover the structural funds; the implementation of agreed foreign policy; trade in services and intellectual property rights; the rules, relating to visas, asylum, refugees and illegal immigration; external border checks; conditions for freedom of movement of third country nationals; financial assistance to aid members in financial difficulties; trade policy; working conditions and

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social exclusion; support for industry; economic cooperation with third countries; procedures for allowing other states to join; and so forth. That is not the whole list.
To say that they are minor matters is to say that provided we keep them as quiet as possible, they will be seen as minor matters. However, when they are examined in the light of day they are not minor at all. The Nice Treaty, as with preceding treaties, shifts the nature of power and decisions and changes the pattern by which people's lives are governed. It is right that even if the Government will not accept the case for a referendum—I concede that previous governments did not do so—both Houses of Parliament should be kept fully and properly informed on the economic, political and constitutional developments arising from the treaties.
Broader questions are raised—we have touched on them in Committee—about how the treaties come to be made. Mr Tony Benn in the other place used to argue with great eloquence that perhaps the Royal Prerogative for treaty making is not always the correct way to proceed. I have sympathy with that argument, as I believe do other Members of the Committee. We are lucky in this case that we have to have a Bill passing through the two Houses to put into our law the consequences of the treaty to which the Government have agreed. However, perhaps in future we should re-examine and revisit that whole issue.
In the mean time, the case for a full explanation, for clarity of explanation and for continuous and effective dialogue about what is being done in the name of the people should be put before the people, before their elected assembly in the other place and before Members in this House where we have a duty to scrutinise, improve and amend. That is what we are trying to do and that is why I beg to move the amendment.
8.30 p.m.
Baroness Symons of Vernham Dean: This amendment would require a report on the implications of the Treaty of Nice within three months of ratification. Her Majesty's Government do not believe that this amendment is necessary. Parliament has been kept fully informed of the negotiations on, and the effect of, the Treaty of Nice. Her Majesty's Government provided a White Paper to Parliament at the start of the negotiations which set out their position and explained all the issues. We held several debates during those negotiations. The Prime Minister, my right honourable friend the former Foreign Secretary and other Ministers reported regularly to both Houses and reported back again at the end of the negotiations.
We have had several debates since then, including the present one, in all of which the totality of the relevant economic, political and constitutional issues have been addressed. I am bound to say to the Committee that in so doing we have argued the same point over and over again in different fora. Of course we shall continue to keep Parliament informed of developments in the European Union as they occur, but we do not believe that anyone in this Chamber can
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point to instances where we have failed to do so. We have also produced a leaflet on the implications of the treaty.
In addition, Parliament will have the opportunity to contribute to the debate on the future of Europe, which we have debated fully in this Chamber several times, in the lead-up to the next IGC. We welcome the debate but do not believe that there is a genuine need for a further report. Therefore, I ask the Committee to reject the amendment.
Lord Howell of Guildford: I am grateful to the noble Baroness for her comments. In her view the amendment is not necessary. I should point out that merely to refer to various past reports and debates does not meet the aim of this amendment which is to do with the future. When and if the Treaty of Nice is ratified—assuming that Ireland turns round and matters proceed smoothly, because there are several "ifs" in the way—thereafter we want to see that the full economic, political and constitutional effects of this measure are put before Parliament. One is really asking for assurances about the future, which we do not have, rather than a track record, which we certainly have and do not dispute.
Baroness Symons of Vernham Dean: Perhaps the noble Lord will give way. I gave the specific assurance that the Government would continue to keep Parliament informed of developments in the European Union as they occurred. I hope that the noble Lord takes that as an assurance about the future.
Lord Howell of Guildford: I take that as an assurance about the future. It is not the one that we want, which is to do with the White Paper, but at least the reportage to the two Houses will proceed as in the past. We do not believe that that is enough and that in the new age of information technology and empowerment in which we live the whole question of communicating to people what is being done in their name needs to be improved and strengthened. For that reason we shall return to this theme again and again, not just on this Bill. This particular matter may well be one that attracts our attention again at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 42A:
After Clause 3, insert the following new clause—
"PUBLIC INFORMATION

(1) This Act shall not come into effect until Her Majesty's Government have communicated to every household in the United Kingdom the constitutional and governmental effects of the Treaty of Nice.

(2) A communication under subsection (1) shall be—

(a) in writing,

(b) in plain English,

(c) in popular form, and

(d) impartial."

The noble Lord said: I do not move this amendment in any spirit of partisanship vis à vis the European Union. The amendment is not concerned with the degree to which we in this House and the other place have debated—some may say ad nauseam—the various aspects of the Treaty of Nice. This amendment is concerned exclusively with democracy, in particular the extent to which democracy is real for the mass of so-called ordinary people of this country.
Just as the amendment is moved without any partisanship, I should at least declare that I am president of a charity called the Citizenship Foundation which, with considerable support from the Government at different times, has striven to make the mysteries of citizenship, particularly vis à vis Europe, a little more apparent to the great majority of school pupils. I believe that however well committees of this House, the Committee this evening and others have debated the matter there has been a major shortfall in the information that is made available to ordinary citizens in language that they can understand and in forms which appeal to them.
Some say that this amendment, if accepted, would help the Euro-wreckers—those who want the UK to leave the European Union, or at least oppose any further evolution of it. That is as untrue as is the claim that the amendment is of assistance to the Euro-zealots. The truth of the matter is that if democracy and freedom of information mean anything at all, ordinary people should have the opportunity to understand and form their own views about what we do in their name.
Some say that this is too late. I agree that it would have been much better had public information been widely available to ordinary citizens at all stages since the referendum in 1975. But a man does not refuse drink because he is parched. Certain it is that the people of this country are parched of impartial and accessible information in popular form. Some will say that all this is too difficult to explain. Many in this House believe that comprehension of the formidable intricacies of the treaty is beyond them, but if that is truly the case we should abandon the European Union now. I for one am unwilling to accept that the Treaty of Nice is incapable of being reduced to plain English and explained to so-called ordinary people in a way that they will understand. That is happening in jury trials of the greatest complexity every day of the week.
Some also say that people are not interested. It is true that only 23 per cent of our fellow citizens turned out at the previous Euro elections. That was a catastrophic figure, and there is no point in hiding behind it. It is also true that, in so far as polled, the level of public interest in matters European is parlous. I do not believe that that is apathy but a combination of ignorance arid resentment, and we can and should do something about it.
I contacted the office of the Foreign Secretary about this matter. I am aware that the Foreign Secretary is particularly keen to enable people of this country to understand what is going on. I was grateful to receive a letter from the Minister in response to my approach.
She made a number of points about the information campaign which the Government are now undertaking. She referred to the White Paper on Nice in February of last year. However estimable all 37 pages of that document may be, it cost £11.10 and took research officials in this House 20 minutes to find.
The Minister referred to the Internet site. That is no doubt an excellent tool for some of our fellow citizens, but only 40 per cent of them have access to it. I bet that only a small number of those who have access will find and use that site. What we are considering tonight is the 60 per cent or more citizens who do not have access to the Internet and would not know what a White Paper was if it was put on the kitchen table but who none the less desperately need unbiased information in plain English in a popular format about this immensely important project.
In her letter the Minister referred to the availability of leaflets. It is true that a leaflet about the changeover in currency was published recently. It is also true that a big campaign on the changeover for business, which was originally headed by the noble Lord, Lord Simon, continues. So far the Government have spent £10 million on that. As the noble Lord said in an article in the Financial Times only last week, it none the less represents a paltry attempt to explain the situation to the business community which has a self-interest in knowing about these matters and considerable levels of informational sophistication.
Finally, the Minister referred to the strenuous efforts being made by Peter Hain, and formerly by Keith Vaz, through tours, speeches and in debates on the Internet. I pay tribute to them. Long may their efforts last. However, no one should be deceived for a moment as regards what this revolution seeks to achieve; that is, to reach the tens of millions that such efforts will get nowhere near.
I should mention to the Committee that it would be ironic if we and the Government failed to achieve what is proposed in the amendment at a point when hanks and other financial institutions are now required by law to inform in writing every individual customer of each change in interest rates. In that I believe we have the potential for demonstrating hypocrisy between what is being imposed on organisations and businesses and what is being done by us.
In her letter the Minister stated that she felt that delivery of information in the form of a tabloid newspaper to every household would not be well received. She thought that such a campaign would not be effective. All I can say in response is that it is about time we tried to do something. Some 26 years have passed since the referendum and we have done absolutely nothing for the ordinary people of this country. Perhaps the Minister is right and such a document would not be well received or would not be effective. However, neither of those speculations—they are no more than that—have put me off in any degree from this proposal. We must try.
Perhaps one is influenced by one's own experience, but I do not doubt that the great British public believe that we are not interested in informing them and that

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we are not in the least interested in learning of any views that they may hold. I maintain that if, as a society, we can utilise freesheets delivered to households every day of the week, along with immense numbers of mailshots for business purposes, and that at election time we shower the households of the country with literature, how on earth can we claim that such an information sheet would be neither effective nor well received?
Some have said that it would be biased. I think that that is nonsense. Every day of the week the Government put out information to the public in the form of White Papers, Green Papers, consultation documents and so forth. I have no trouble believing that the Government would do their best to publish unbiased information, should the amendment be accepted. Finally I was told that something else should be done because the proposal was not appropriate. However, as I see it, nothing else has been done.
I turn now to the question of cost. I have taken the trouble to inquire of the Royal Mail what it would cost to deliver a tabloid freesheet to all 24.5 million households in the kingdom. I have also learnt what it would cost to design and print such a freesheet comprising two pages in full colour. The total cost would amount to under £1.4 million. Given that the interest payable on the Dome debt exceeds that sum per diem, I do not think that we should jib at such a relatively modest sum.
I shall bring my few remarks to a close by saying that I am sorry that the amendment has been moved at this time of night when the Committee is not as full as it might have been. I believe that the issue with which we are grappling could not be of greater moment, both to us as a Committee and to our democracy. The European Union represents probably the most dramatic and ambitious exercise in democracy that we have witnessed in modern times. It is enormously important for every citizen. We have had a taste of that in the issues covered by the Nice Treaty during the course of our debates.
I shall return to the point where I began my remarks. If we are serious about making our democracy vibrant, if we are truly concerned about the fact that, at the last election, only 59 per cent of our fellow citizens bothered to exercise their precious right to vote, and if we are in any way influenced by poll after poll reflecting the level of disaffection felt by the public at large, then it is not sufficient for us to rest on the traditional methods of imparting information. We need to change to using means of communication that we may have some hope will be acceptable to those who most need us to reach out to them. An element of psychology comes into this: the public want to feel that we are reaching out and making a special effort to communicate with them; that is, that we care about them, that we want them to understand and that we do want to hear from them.
For all those reasons, so briefly and inadequately put, I hope very much that the Government will feel able to respond positively to the amendment. I beg to move.
8.45 p.m.
Lord Brooke of Sutton Mandeville: Some 40 years ago, when I was the Swiss correspondent on the Financial Times, Sir Edward Heath and the late Reggie Maudling arrived in Geneva to tell their EFTA colleagues that we would negotiate to join the European Economic Community. Ten years later, between 1971 and 1973, I was a private sector resident in Brussels when, under Sir Edward's government, the treaty was being successfully negotiated and signed. In the mid-1980s, I had the experience of serving for four years as the British Minister on the Budget Council of the European Union, probably the longest period of service since 1972. Those three lepers' squints at what now is the European Union were as nothing to the experience of debating these matters in your Lordships' Committee.
I have long regarded the European Union as a cathedral. The swiftest record for the construction of a European cathedral was 40 years for Durham; the longest was over a millennium for Prague. It looks like the European Union will come in somewhere between those two figures. Because a cathedral is—as the good book puts it—a house with many mansions, the condition of the construction process is that of a series of building sites. From time to time, the language which floats upwards from those building sites is that which emanates from any building site in the land.
A little after that metaphor had first occurred to me, I discovered that it had earlier struck that great man, Charles de Gaulle. I was proud to serve as an infantryman in the army of a man who, in his post-war memoirs, said memorably—I give the English translation—
"I invited M. Herriot to join me in rebuilding France. He said that he preferred to rebuild the Radical Party".
The next thing I have to say might have caused me to be cashiered from the general's army. Ever since that summer 40 years ago in Switzerland, I have always regretted the fact that Europe has primarily, and perhaps inevitably, advanced through its élites rather than through its peoples. I suspect that de Gaulle would have remarked that the French people trusted him; no doubt they did. However, the subsequent seeming enthusiasm of the French people for the direction in which Europe was going struck me as being at odds with their reputation for individualism. As a result I was in no way surprised that the French vote in the referendum on Maastricht was so close and that perhaps the French élite had rather unwisely taken the French people for granted.
For myself, I believe that the cathedral will be built more securely and nobly if the peoples of Europe genuinely are carried along in the process and retain the periodic right to say, "Wait a minute". Of course a cathedral cannot be built by referring every separate construction issue to the diocesan electoral register. But, when people are consulted and kept fully informed, they have a much better chance of reaching a good decision. For the reason that my noble friend Lord Howell adduced on the last new clause but one, I regard the current new clause as a classic milestone in

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the process and I have no hesitation in supporting the noble Lord, Lord Phillips, whom I congratulate most warmly on bringing it forward in an admirable speech.
Lord Stoddart of Swindon: The noble Lord, Lord Phillips, should indeed be congratulated on bringing this issue before the Committee. He is absolutely right, there are so many people who say, "I do not know anything about the Common Market. No one explains it to me. No one tells me what it is all about". When you say, "Read the newspapers, from the Sun to The Times to the Telegraph". they say, "I want something that is unbiased". The noble Lord, Lord Phillips, proposes that the Government should send out a leaflet in popular form, in writing, in plain English and impartial. That is exactly what people want and that is what they should have.
There is however a difficulty about impartiality. I am not sure that I trust the Government to be impartial. I shall tell the noble Lord why I do not trust the Government to be impartial. I keep lots of little pamphlets and books, and I have kept one entitled Britain's New Deal in Europe. It was issued to every household during the 1975 referendum by Her Majesty's Government. It was said to be—or was supposed to be—impartial. Anyone reading it would not agree that it was impartial.
If there is to be a pamphlet or leaflet such as the one proposed by the noble Lord, Lord Phillips—and I shall support his amendment if he puts it to a vote today—I should like him to think between now and Report stage about how we can have someone other than the Government draft an impartial leaflet. The Electoral Commission or other commissions could draft it so that it was truly impartial. If the Government said, "Lord Stoddart, will you come along and help us to draft it?", then of course it would be impartial—I accept that—but they are unlikely to do so.
Before Report stage, perhaps the noble Lord, Lord Phillips, will think about an amendment so that someone other than the Government drafts the information for the general public.
Lord Willoughby de Broke: I support the amendment of the noble Lord, Lord Phillips. It seeks that every household in the United Kingdom shall be informed about the constitutional and governmental effects of the Treaty of Nice. Presumably the noble Lord means they should he not only informed about the Treaty of Nice but about how the Treaty of Nice amends all the other European treaties. If so, the communication will describe the new deal that we have in Europe now. It will tell the citizens of this country—in plain language and impartially—where we have got to in Europe; where we stand in Europe; what we have given away; where we are going; whether we want to go any further.
The Treaty of Nice does not mean anything unless it is referred back to the other treaties it amends. I do not know whether the noble Lord will press this amendment to a vote today, but, if he does not, it may be sensible to make an alteration to the amendment to
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make clear that the people of this country need to be informed about the whole European picture. If he does press it to a vote, I shall certainly support him. It will give me enormous pleasure to see the Government Benches filing into the voting Lobbies to support more obfuscation in Europe.
Lord Howell of Guildford: We on these Benches have considerable sympathy with both the amendment of the noble Lord, Lord Phillips, and the arguments he brought forward on earlier amendments. As I think everyone recognises, regardless of party, the European Union has become an immensely complicated structure, well beyond the capacity of any single human mind to grasp in all its ramifications. Indeed, it is more than a cathedral, as my noble friend Lord Brooke so adequately put it.
The European Union needs not only to be explained more simply but to be simpler. If it was simpler it would be stronger; if it was stronger it would no longer be suffering from a haemorrhage of democratic trust and faith and might even give the policy makers in Europe the realisation that they should take things at a more careful pace. They have spent 40 years achieving amazing results; now they want to rush ahead in the next five years to give us an army, money, a constitution, a single judicial area, vast enlargement and so on. They have many admirable objectives, but everyone knows that there has already been created enormous bureaucratic and legislative indigestion.
The need now is for a simpler Europe explained in simpler ways. Whether a genius can be found to utter the impartial phrases that would put the matter seriously before people, and whether we would be able to get away from the polarised nonsense that seems to affect a number of the speeches of the noble Baroness's Cabinet colleagues who have simply not grasped what the real debate on Europe is about, I do not know. It would he a high hope.
However, this has the makings of being a very sensible amendment. I do not know whether the noble Lord will seek to press it further today but, whether he does or not, it should be supported by those who want to see a more sensible Europe than the one we have today.
Baroness Symons of Vernham Dean: We are all agreed about the need for information on the Treaty of Nice and the associated issues. That is why the Government published the White Paper, Reform fin. Enlargement, in February 2000, before the start of the IGC which led to the Nice Treaty. That White Paper set out in clear and simple English the issues involved and what the Government's approach was intended to be.
At least two noble Lords have pointed out that there are one or two problems with the noble Lord's amendment. He exhorts us to publish such a document in plain English and popular form and to be impartial. But, as the noble Lord, Lord Stoddart, pointed out in his inimical way, what I think of as being impartial and what he thinks of as being impartial are likely to be two rather different things.

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The noble Lord, Lord Stoddart, said that he supported the amendment of the noble Lord, Lord Phillips, but then went on to say that he did not really if it was going to be written by the Government. The noble Lord, Lord Willoughby de Brooke, said that he supported the amendment, but he did not really because it was going to concern only the Treaty of Nice. The amendment is as it is written down, not as noble Lords would like it to be written down.
The Government have regularly held debates on the issues involved. They have provided information to Parliament and to the public on the outcome of Nice. Parliament has received a detailed explanatory memorandum to accompany its consideration of the Bill, which has spelt out the issues; and the British public have been able to secure a host of information on Nice and the EU through the Foreign Office website, www.fco.gov.UK/EU/Nice, which provides information on enlargement of the EU, the latest FCO press statements on the EU and the issues surrounding Britain's membership inter alia.
The noble Lord, Lord Phillips, exhorted us "not to rest on tradition". I do not think of using websites or the series of debates held by my right honourable friend Mr Hain and his predecessor as resting on tradition. It is traditional to send out a leaflet on an unsolicited basis to every household in the country. That is the traditional way of doing things. The Government have tried to be much more innovative about the way in which we have approached this issue.
We have, indeed, published a short leaflet for the general public which sets out the issues. I believe that it does so in a clear and impartial way and in a way that is referred to in the referendum. But I am willing to bet that quite a few Members of the Committee would not think that it was clear and impartial, given some of the remarks that have been made.
I believe that due credit should be given to my right honourable friend the Minister for Europe, who has undertaken a major tour of British towns and cities. He has set out the issues relating to EU membership very much in the broader sense mentioned by the noble Lord, Lord Willoughby de Broke, and not just in respect of Nice. He has been talking to businesses, in open fora, on local media and, importantly, to students and in schools.
I am bound to say to the noble Lord, Lord Phillips, that I rather doubt whether young people at school are going to fall upon a leaflet that comes through their front door in anything like the way in which they will respond to something on a website or which is being debated in their schools. That is the way to get people to debate these issues, rather than just by putting something through a letterbox on to a doormat, which goes straight into a waste-paper basket. It is the attempt to provoke debate, in the way the Government have undertaken to do, that will see this issue through.
Lord Stoddart of Swindon: I am obliged to the Minister for giving way. She mentioned that the
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Minister for Europe has been to schools and colleges to put the Government's point of view. But this is a highly political matter. It is incumbent on the educational establishments to see that there is political balance. Does the Minister for Europe remind schools that they should insist on political balance? And how is that achieved?
Baroness Symons of Vernham Dean: It is up to the schools who they invite into them. I do not think that my right honourable friend is forcing himself on anyone. If people wish to hear politicians from any party, they are as entitled to hear members of the elected government of the day as they are to hear the opposition.
Lord Stoddart of Swindon: Will my noble friend give way? I really must stop calling her "my noble friend". She is "the Minister" to me these days. Is she aware that it is not a question of my forcing myself on schools. The difficulty that some of us find is in obtaining entry to schools. They resist us on the basis that this is a political matter. When we say, "But you've just had Mr Hain to speak", they say. "Ah, he's a Minister. That's different". In our book, it is not different. He is putting one point of view, and we want to be able to put another point of view.
If the Minister wants to help, she will persuade the Secretary of State for Education to remind educational establishments that they should produce balance and ensure that a point of view other than that of the Government on European issues is put to schools.
Baroness Symons of Vernham Dean: I meant that the Minister for Europe was not forcing himself on schools. The point that I made was not that the noble Lord was not forcing himself on schools—I do not know whether the noble Lord, Lord Stoddart, has attempted to force himself on schools or not. My point was that my right honourable friend does not force himself on schools; he goes at people's invitation. I am sure that invitations will be forthcoming where that is appropriate.
I remind the noble Lord, Lord Howell, who asked us to consider the importance of having treaties that are more easily understood, that one of the issues that I hope we shall debate in the run-up to the IGC in 2004 is the simplification of treaties,
"with a view to making them clearer and better understood without changing their meaning".
That was one of the issues that the noble Lord would have excised from the Bill had he had the good fortune to persuade the Committee to do so.
It is the view of Her Majesty's Government that the noble Lord, Lord Phillips, has underestimated the cost of his amendment. We believe that the cost would he in the region of £5 million—which I had understood to be the noble Lord's original calculation; perhaps that was not so. No one grudges that amount of expenditure. But if we are to spend £5 million, we should like to do so in a way that would be focused on

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really provoking an argument in the way that I believe the noble Lord genuinely wishes to see and in the way that Her Majesty's Government genuinely wish to see. We do not think that the traditional method of the leaflet through the door will really provoke what the noble Lord believes is the case. Therefore, we ask the Committee to reject the amendment.
Lord Norton of Louth: Before the Minister sits down, I am sure that she would not have referred to the website without having the figures. Can she tell us how many hits the website has had, and from how many users?
Baroness Symons of Vernham Dean: Foolishly, I do not have the figures. I shall endeavour to obtain them and let Members of the Committee know as soon as I can.
Lord Phillips of Sudbury: Perhaps I can help the Minister. When she wrote to me, she said that the website receives 10,000 hits a month. At that reckoning, it would take 27 years for half the population to make a hit on the aforesaid website.
I must be honest and say that I am disappointed with the Minister's response. Indeed, I wonder whether she was latching on to the purport of my attempt to justify the amendment; namely, to make the point that it is the bottom two-thirds of the population of this country who are out in the cold as regards Europe. They are citizens like the top third, like the brightest and the best. They have as much right to understand what is going on in their name as do those of us in this Chamber.
Although the Minister said that my view was the traditional one, she did not respond to my point that no single attempt has been made by any government since 1975 to communicate information to the public of this country by any means of a mass nature. That is to say, no leaflet, no brochure, no tabloid has been put through the doors of the people of this country over that long period.
When I referred to "traditional", I did not mean in terms of modern means of communication. My reference was to the fact that the same old dialogue was going on between government and the elite, and between the students, the cognoscenti. Trying to pretend that a few visits by the industrious Mr Hain to a handful of schools remotely comes near to what I am talking about in the amendment makes me deeply disappointed. It is a particular disappointment because democracy should be a bottom-up process, not a top-down one. Europe has become a top-down project. Unless we change that radically and do so soon, all of us who harbour hopes for Europe's future will be disappointed.
At this time of night I do not propose to divide the Committee, although I may wish to come back to the subject on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Norton of Louth Lord Norton of Louth moved Amendment No. 42B:
After Clause 3, insert the following new clause—
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
This Act shall not come into force until both Houses of Parliament have agreed a resolution on a report from Her Majesty's Government on the status of the Charter of Fundamental Rights of the European Union."
The noble Lord said: The subject of the European Charter of Fundamental Rights was covered in an amendment moved by my noble friend Lord Howell of Guildford last week. On that occasion I put two questions to the Minister about the status of the charter. I later intervened during her response to put a question about her comments on the debate on the future of Europe.
In her response to my noble friend's arnendment, the Minister made no attempt to answer the two questions that I had put in the discussion on the amendment. She also failed to answer points that I made in my intervention, instead repeating a point that had already been made, and refused to give way when I sought to pursue it.
The Minister's actions as well as her response to my noble friend suggest some reluctance by the Government to address directly important questions about the European Charter of Fundamental Rights. The charter is referred to in Declaration 23 on the future of the Union. It is one of four topics to be considered, inter alia, as part of the debate about the future of Europe, leading up to the Intergovernmental Conference in 2004.
I shall begin with a general point that I put to the Minister in my intervention last week and then move on to specific points. The Government wish the debate on the future of Europe to be precisely that: a look at where the Union is going. The Foreign Secretary made that clear on the Second Reading of the Bill in the other place. He said:
"We have to ask what exactly is the European Union for? What precise purpose does it serve?".—[Official Report, Commons, 4/7/01; col. 272.]
For those who want the debate to focus on those fundamental questions, Declaration 23 is a disappointment. It lists topics that are essentially disparate and discrete. If we debate each of those topics, particularly if we debate them as discrete items, we shall miss the wider picture and I fear that the IGC in 2004 may prove to be a lost opportunity. As the noble Lord, Lord Dahrendorf, whom I am delighted to see in his place, said on Second Reading:
"We may have years of discussion on institutional changes without any sense of where the European Union is supposed to move or what its next major themes in substance will be".—[Official Report, 1/11/01; col. 1592.]
I cannot improve on that.
On the specific points in support of the new clause, the charter is one of the four subjects adumbrated in the declaration. Why is it there? Why is the status of the charter deemed so important that it is one of only four subjects to be explicitly identified in the declaration? The Government have said since the charter was drawn up that they are clear about its

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status: it is a political document drawing together existing rights. When he was Minister for Europe, Keith Vaz described it in his evidence to the European Union Committee as,
"a showcase of existing rights".
The noble Baroness repeated that point last week. She said:
"it is a political declaration. It cannot take precedence over our law because it is not the law".—[Official Report, 20/11/01; col. 1118.]
She has said again this evening that the courts could take account of it, as they could take account of other things.
Why is there a need to debate the status of the charter if the Government are clear as to that status? The noble Baroness made it clear last week that there can be no change in the status of the charter unless all member states agree. If the Government believe that it should remain a political declaration and have the power to prevent it from being anything else, why are we having this debate?
Given that the Government have agreed that the charter should be such a prominent part of the debate on the future of Europe, the presumption must be that they are prepared to contemplate departing from their present position. In that case, we need to hear more from the Government.
The new clause is a way of ensuring that we have a clearer statement of the Government's views. The Government have said that they welcome the debate on the future of Europe. A report from the Government on the status of the charter will be an enormous benefit in informing that debate, at least helping us understand why we are having a debate about the status of the charter. If the charter can already influence the courts and the Government wish it to retain the status of a political declaration, what purpose is served by incorporating the charter in the treaty?
Last week I also asked the Minister what was the logic of drawing up a charter and deciding its status after the event. Should that not have been decided before, not after, the charter was drawn up? That point was well recognised by the European Union Committee of your Lordships' House in its report on the charter published in May last year. The report said in paragraph 122:
"There is something quite odd in drafting a document before a decision has been taken as to its ultimate status and legal effect. This might well be said to be putting the cart before the horse".
Indeed, as the European Union Committee concluded, it may also be the wrong horse. The view of the committee was that accession by the Union to the ECHR should be on the agenda of the IGC.
The position we are in is therefore profoundly unsatisfactory. The new clause will impose a useful discipline on government. It will allow us to move forward with a little greater confidence than is possible at present. Rather than giving the seal of approval to the Nice Treaty and then moving on to the debate on the future of Europe, I think that we should link the
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two. We should not allow this measure to take effect until we are somewhat clearer as to where we are going beyond it.
The modest provision of this new clause ensures that we are at least clearer about what is intended as far as the Charter of Fundamental Rights is concerned. I should prefer clarification of far more before we give approval to this Bill. I think that this clause is the minimum that we should demand as we engage in the debate on the future of Europe.
I end with two quick points. First, this is not a novel proposal. There is a precedent for requiring a parliamentary resolution before treaty ratification can proceed. Secondly, it is not a device to delay the Bill. There is no reason why the Government should not move quickly to produce a report. If the Government are clear on the status of the charter, they should not fear this clause; they should welcome it.
9.15 p.m.
Baroness Symons of Vernham Dean: I believe that we debated this question fully on 20th November. Indeed, I can think of few issues where a relatively straightforward matter has been discussed so clearly.
On 20th November, the noble Lord, Lord Norton, put two questions to me. He said:
"First, it is my understanding that the Government themselves are quite clear as to the status of the charter … If the Government are quite clear on that, why do they believe that an IGC is necessary to discuss that status?
Secondly, could the Minister explain to me the logic of drawing up a charter and deciding its status subsequent to the event?".— [Official Report, 20/11/01; col. 1115.]
The noble Lord did get an answer there and then, because I told the Chamber a few minutes later in the same debate (at col. 1118) that,
"the charter is a political declaration. It cannot take precedence over our law because it is not the law. It is not in the present EU treaty. Nor is it referred to in the treaty itself.
One can quote a variety of different sources. Perhaps some people would like the charter made law. I freely concede that the Commission and some member states want to make the charter legally binding and to incorporate it into the treaty, but we have not agreed to do that. Nor can there be any change in the status of the charter unless we and all member states agree, because the treaty requires unanimity.
We have agreed that at the 2004 intergovernmental conference, consideration should be given to whether or not to incorporate the charter in the treaty and, if so, how. That is the mandate agreed by the Cologne European Council … and we shall stick to it".
The noble Lord says that he would like further elucidation, so let me try to help him further. His first question was: if the Government are clear on the status of the charter—and we are, it is a political declaration—why have an IGC to debate it in 2004? The answer is simple. As I said, some member states want to make the charter legally binding. They did not succeed at Nice. Our view, that it should be a political declaration, was the view that prevailed. We are happy to have that discussion, but only on the basis that it does not prejudge the outcome. The mandate we agreed certainly does not prejudge the outcome.

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The Nice text stipulates that we will consider only, "whether, and if so how, the charter should be integrated into the treaty". Moreover, at Nice we wanted to add our own points to the 2004 agenda on better demarcation of competencies between the EU and its member states, on simplifying the treaties and on the role of national parliaments. We got that into the Nice declaration on the future of Europe, not least because we were prepared in exchange to agree on another discussion of the charter in 2004.
The second question posed by the noble Lord was: why draw up the charter first and decide its status only afterwards? The answer to this is equally simple—because that is what the EU leaders decided upon. They agreed at the Cologne European Council in 1999 to draw up a charter to make fundamental rights more visible to EU citizens. Everyone agreed to that—and why not? There was no consensus, however, on the final status of the charter. It was also agreed at Cologne that, once the text had been drawn up, it should be considered whether, and if so how, the charter should be integrated into the EU treaties. There was no agreement at Nice to do that, so the charter remains a political declaration outside the EU treaties. It remains so, unless and until there is unanimity to integrate it into the EU treaties.
I do hope that the noble Lord can now agree that that is an unambiguous answer to his points. I believe that it was made before, but I hope that that answer has elucidated the position to his satisfaction.
Lord Norton of Louth: The noble Baroness will not he surprised to hear that the answer to that question is no. I commend her on her reading skills; she repeated her earlier points quite clearly. But she did not address the nub of my point.
The noble Baroness did not address the fact that she is saying: we are quite clear as to the status; it is a political declaration; none the less other states do not agree and therefore we shall continue the discussion. Presumably that means that what happens to the charter is to be open to discussion; that is the whole point of the debate. That is not foreclosing it. The Government are going along with, or giving in to. those who did not get their way at Nice and who want to push the issue further. In other words, the matter is still up for discussion. We still do not know what the outcome will be. In that sense we are none the wiser.
In that respect there has been an absence of leadership. The same applies in relation to the noble Baroness's answer to my other point: why was this drawn up without any consideration as to its status or legal effect? The response was that that was what the others decided. Why let them decide? Why let them dictate the situation.
Baroness Symons of Vernham Dean: I did not say that that was what the others decided. I said that that was what the EU decided. I also said that it was a matter of making the charter with more fundamental rights more visible to the EU citizens. There was a
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purpose in it. Making those fundamental rights more visible to EU citizens is surely a purpose that was fulfilled.
Lord Norton of Louth: The purpose was simply one of transparency. We now have the charter. Why are we debating this therefore in the context of the future of Europe? That should have been that. It was transparency. Of course, in practice, as the report from the European Union Committee made clear, it is not as simple as that because there is the relationship to the European Convention on Human Rights. The situation therefore is more complex than the noble Baroness indicates.
So the noble Baroness did not get to the nub of my point. I am reluctant to pursue this until she does. I am conscious of the hour and even more conscious that I have to get back to Hull this evening because I have students to teach. So we may have to return to this matter, by which time I hope the noble Baroness's answer may have gone up from a 2.2 to a 2.1. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
House resumed: Bill reported without amendment:.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No.2) Order 2001
9.23 p.m.
Lord Rooker: My Lords, I beg to move.
Moved, That the draft order laid before the House on 19th November be approved [10th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.

Terrorism Act 2000 (Enforcement of External Orders) Order 2001
Lord Rooker: My Lords, I beg to move.
Moved, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.

Human Reproductive Cloning Bill [H.L.]
Then, Standing Order 46 (No two stages of a Bill to be taken on the same day) having been dispensed with (pursuant to Resolution of 22nd November):
9.25 p.m.
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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Moved, That the House do now resolve itself into Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause I [The offence]:
Lord Brennan Lord Brennan moved Amendment No. 1:
Page 1, line 3, at end insert—
"( ) A person who, without a licence from the Human Fertilisation and Embryology Authority, creates or keeps an embryo to which this Act applies shall be held to have intended to commit an offence under this section."
The noble Lord said: This Bill has a single purpose; that is, to,
"Prohibit the placing in a woman of a human embryo which has been created otherwise than by fertilisation".
This amendment seeks to fortify that purpose.
The Long Title and subsection (1) of Clause 1 refer to the,
"placing in a woman of a … embryo"
as I have described it. The measure does not, on its face, encompass any acts which are designed to achieve that physical end, such as the creation of an unfertilised embryo, its being kept by those who have produced it until it is required or any importation or exportation of such products. The amendment, therefore, as I said on Second Reading, seeks to assist in plugging comprehensively what my noble friend Lord Carter described as a loophole.
In order to explain the legal purpose of the amendment I invite the Committee to exercise a little patience while I go through some basic legal principles. First, the Bill legislates criminal law. Therefore, its terms will be construed strictly by a criminal court and construed in favour of the defendant where there is any doubt or ambiguity. Therefore, it is simply inadequate for a government Minister to assure the Chamber of what his interpretation is or of the confidence with which his department views the terminology of the section. The critical test is what it says, not what you think it says.
The provision, therefore, has to be looked at in order to determine whether it clearly and adequately fills the single purpose. My noble friend the Minister may say in due course that he has taken advice on the matter. I certainly hope that lie has and, if he has not, that he will do so in the short time left to him. It would be prudent perhaps not to use the same adviser who gave him views on the regulations a year ago. Perhaps he might usefully choose a practitioner in the criminal law because what I am concerned about in inviting the Committee's attention to this provision is the proper application of the criminal law.
The Criminal Attempts Act states that the legislation of any offence includes an attempt to commit that offence, even though the Act or Bill does not mention the word "attempt". That is common sense. But here we are dealing with the act of placing the unfertilised embryo in a woman, or the attempt to
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do that—something proximate to it—preparing the lady in an appropriate room, getting the equipment together, being about to start the process—that is an attempt—and then doing it—that is the completed offence.
If any ordinary observer asked of this Chamber: "Does this Bill effectively prevent anything to do with human reproductive cloning?", a competent lawyer would say, "It does not". The reasoning which I briefly outlined can be developed as follows.
The 1990 Act permits in vitro fertilisation using a fertilised embryo, which is a combination of a human sperm and a human female egg. By dint of the decision of 15th November, which echoed the views of several lawyers, it has become clear that the 1990 Act does not embrace cell nuclear replacement, which is not the product of fertilisation as I have just described it. Therefore, it follows that as of today the law of England does not prohibit the use of cell nuclear replacement to prepare for human reproductive cloning. If this clause is enacted in its present form that situation will continue. The attempt to commit the act of placing the object in the woman will be prohibited but the production of such an embryo will not be covered.
Sensibly the Government are appealing. Acting prudently, no doubt they will anticipate the risk of failure as well as success. If the case is then referred to the House of Lords it could take nine or 12 months before the law is clarified. In that period of time there are many who fear that people such as Dr Antinori and Dr Zavos will seek to use the science and ability of this country to develop this area of learning profitably in scientific terms and perhaps profitably in commercial terms. One of those two men has been described by a distinguished scientist as criminally irresponsible. I am afraid that that is descriptive but not legally correct. If they were so to act, they may be responsible but they would not be criminally liable.
After noble Lords have listened patiently to that legal analysis, I shall put the matter in practical terms. An attempt involves something that is more than merely preparatory. In meeting my amendment I invite the Minister to explain whether this proposed clause prohibits or makes a criminal offence of the creation of unfertilised embryos from cell nuclear replacement or of the keeping of such a product. If the answer is no, my amendment has virtue. If the answer is yes, is that upon legal advice? Can he explain the matter to the House? I, for one, as a lawyer, entertain most severe doubts.
Why is it important? Over the next six or 12 months until the law is clarified, can we afford to permit a legal limbo in which people such as Antinori and others can claim that the law either does not exist to be acted against them, or is unclear, or if they were prosecuted that lawyers would say that it was not clear? The purpose of my amendment is to ensure that during that interim no attempt is made to use the United Kingdom as a production centre for unfertilised cell nuclear replacement embryos. In passing this Bill, it would be a tragedy if we allowed an attempt to produce such

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products that just might—I do not say will—lead to the implanting of such a product in a woman abroad, if not here.
This is a serious amendment. It is carefully put to the Government in order to prevent, in so far as we can, another debate in months to come in which it might be said that the Act is not sufficiently all embracing. It does no more than fortify a single purpose. It closes the loophole comprehensively. I beg to move.
Lord Winston: It seems to me that the amendment would prevent the production of experimentally used embryos for therapeutic cloning. As such, of course, that would be a major problem. With this amendment my noble friend Lord Brennan seeks, either intentionally or unintentionally, to prevent further research in this field.
Lord Brennan: I am very grateful to my noble friend for giving way. The amendment—I did not deal with that part of it because I considered that it was selfevident—refers to a person who acts in this way,
"without a licence from the Human Fertilisation and Embryology Authority".
With such a licence, a person could so act.
Lord Winston: Then, of course, we come to the position of Dr Antinori and Dr Zavos. I believe that it is worth looking at the 1990 Act of Parliament as it stands. The fact is that since embryo research was permitted under legislation in this country, so far as I am aware there has been no single occasion on which a research worker, working with human embryos under any circumstances, has had his licence withdrawn. The reason is that every single person performing in vitro fertilisation and carrying out experimental work in this country has done so in very good faith. Clearly such people have been extremely reticent about trying to do anything which might be even remotely considered to be beyond the law.
That certainly applied in relation to the embryo research issue. That is one reason why people have not applied for licences to carry out cell nuclear replacement therapy. They were concerned to be sans reproche. I believe that the idea that Antinori could come to these shores and suddenly operate with human eggs and human cells is unthinkable. He would need to have collaborators, but such collaborators would lose their licence under the 1990 Act. It would be impossible for such a person to start to practise in this country on that basis. Therefore, I believe that the amendment would simply not be needed under the Act.
Lord Hunt of Kings Heath: I am grateful to my noble friend. Certainly I very much understand the point that he raises with regard to fortifying the purpose of the Bill. At present, the Bill addresses the issue of reproductive cloning, which involves placing in a woman an embryo created other than by fertilisation. As my noble friend Lord Winston pointed out, I believe that a problem arises from that. If it were
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accepted, the amendment would make it an offence to create or to keep any embryo created other than by fertilisation.
The problem is that that would apply whether the purpose was to create an embryo or to keep it for research or for any purpose other than reproductive cloning. Therefore, the effect of the amendment would always be that anyone who created or kept a cell nuclear replacement embryo would be deemed to have intended to commit an offence, whether or not he so intended. I do not believe that that is an appropriate approach to take. The focus of the Bill is on reproductive cloning. The amendment would extend the scope of the Bill to cover anyone creating or keeping an embryo, even though he had no intention of committing an offence; in other words, it would apply to people involved in therapeutic research cloning.
As a result of the 15th November judgment, the HFEA cannot give a licence to allow cell nuclear replacement embryos because the judge found that there was no jurisdiction over such embryos.
The noble Lord asked me about the specifics relating to possible offences involving the placing in a woman of an embryo that has not been fertilised. My understanding is that under normal criminal law, a person could be prosecuted for aiding and abetting or counselling and procuring. Essentially, that follows from the 1990 Act. He also asked about issues involving the creation and keeping of cell nuclear replacement embryos. First, the amendment is directly aimed at therapeutic cloning. Secondly, on the regulation of cell nuclear replacement embryos in relation to creation and keeping, the Government's view is that we wish to wait for the court's judgment on appeal before deciding on the way forward. On that basis, I ask my noble friend to withdraw the amendment.
Lord Brennan: I regret that my short attempt at legal learning for the Committee's benefit turned out to he so unproductive. My noble friend Lord Winston and the Minister interpreted the provision in a way that was not intended and which the amendment does not, on the face of it, suggest. It is directed not at therapeutic cloning but at embryos,
"to which this Act applies";
namely, to embryos that are used for the purpose of human reproductive cloning.
It may well be that given more thought and the benefit of discussion with a non-lawyer, such as my noble friend Lord Winston, I could think of better terminology. However, my question remains unanswered. How does the law of this country currently stop Antinori and anyone else from creating and keeping an embryo that is designed to be used for human reproductive purposes? That is a rhetorical question, but the public will ask it. It would be a shame if there were no answer and such an occurrence eventually took place.
I have listened carefully to what has been said and I have registered my concern. I hope that in the short time that is left to the Government, they will give

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thought to prohibitions involving the acts that are more than merely preparatory but which do not amount to an actual attempt or the full commission of the offence. I hope that they will frame the legislation accordingly. I also hope that I have provoked consideration of a genuine concern, which will have to be met. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 2:
Page 1. line 10, at end insert—
"( ) in Scotland, except with the consent of the Lord Advocate."
The noble Baroness said: I am baffled about why this issue should be a reserved matter. If I were a Scottish person residing in Scotland, I should want these fundamental issues to be discussed by my Parliament and the people who represent me there. However, that debate was lost some time ago.
Having heard the Minister's response at Second Reading, I ask, in all innocence, why does Clause 1(3) make specific reference to England, Wales and Northern Ireland? Clause 2 deals with the extent of the Bill. It will extend the legislation to Northern Ireland, and we know that it will apply to England and Wales. The clause also refers to the legislation's implementation in the Channel Islands. There is a distinction between the situation in 1990, to which the Minister referred, and today—the difference is that there was not a separate Parliament then and there is one now. It would seem that when we pass primary legislation in this House there should be a specific reference on the face of the Bill under the extension clauses to say that the provision would apply in Scotland.
My next point is that there is a strong Scottish interest in the Bill. For the benefit of Members of the Committee, Scotland is hardly a peripheral issue to the debate. The Roslin Institute in Edinburgh, where Dolly the sheep was created following 277 attempts, has now been bought out by the Geron Corporation, which is an American company founded by Michael West the scientist, who was in the news today, coincidentally, for having cloned the first embryonic human being.
A director of Geron, Mr Simon Best, shared a platform with the noble Lord, Lord Sainsbury, at the Labour Party Conference in 1998 when the noble Lord publicly announced his support for experimental embryonic cloning. The significance of that piece of information is that the noble Lord at the time was Minister for Science and was in the middle of a consultation process on this matter. It would have been important for the noble Lord at that stage to have remained neutral. If it had been a planning inquiry and the Minister had publicly declared a bias in favour of one side or the other, that would have been inadmissible and the inquiry would have been declared invalid. To complete the connection, Geron has a substantial investment in the Roslin Institute. If it is
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thought that all of that is irrelevant, surprisingly, the day after our debate on 22nd January the share price of Geron rose by 7 per cent.
This is material to the people of Scotland. As I have said, this is not merely a peripheral issue. I should be far happier if there was a reference to Scotland on the face of the Bill. The Minister may say that this implicitly applies to Scotland, but does it not implicitly apply to England if we are passing legislation in the UK Parliament and, because it is primary legislation, to Wales and Northern Ireland? If it is good enough to make reference to England, Wales, Northern Ireland and the Channel Islands, why should it be deemed necessary not to make any mention of Scotland? I beg to move.
9.45 p.m.
Lord Alton of Liverpool: I explored this matter with the Minister at Second Reading. I am grateful to him for his reply. Can he clarify at this juncture whether in Scotland it will be the Lord Advocate who will have the role which the Director of Public Prosecution is designated as having on the face of the Bill?
Perhaps I may briefly commend the remarks of the noble Baroness, Lady Blatch, with which I entirely agree, not least her point about the issue of reserved powers and how this is properly a question which the Scottish Parliament should address. Even though that might delay our process, surely it would be better to reach agreement, not just between England and Scotland, but also for there to be international agreement, which is rather more to the point, on these vexed issues, rather than steamrollering through legislation, especially as the European Parliament has now, in a move which will affect Scottish scientists as well as scientists working elsewhere in the United Kingdom, acted to prevent them being in receipt of European funds if they proceed with either reproductive or therapeutic cloning. In addition, given the announcements today by the White House that it will specifically outlaw all forms of human cloning, the new moves being made in the Senate to bring that about, and the recent vote in Congress which by a majority of 100 decided to outlaw the measures, this is clearly an issue which the Scottish Parliament will also properly want to consider.
The only other point I wish to make, again in support of the comments made by the noble Baroness, Lady Blatch, concerns the way in which huge vested interest has played its part in this debate. A few months ago the Prime Minister stated that he now believes that the European "Eurotech" industry is worth some £70 billion and he hoped that we would be at the hub of that. Although one wants to safeguard British interests, such interests are best protected when good science and good ethics march hand in hand. I am grateful to the noble Baroness for tabling the amendment and look forward to the Minister's reply.
Lord Walton of Detchant: I make a brief comment which does not relate to Scotland but to a comment made by the noble Baroness, Lady Blatch. Michael West of Advanced Cell Technology in Massachusetts

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gave an interview in which he made it perfectly clear that the technique he had used was one of cell nuclear transplantation in order to create stem cells for research. He had not the slightest intention of creating a new human being or of proceeding to reproductive technology. I simply comment that it is for that reason that I regard the headline in today's Daily Express of a new baby being cloned as quite outrageous. It is totally contrary to what that company is doing.
Lord Hunt of Kings Heath: Perhaps I may say to the noble Baroness, Lady Blatch, that Scotland is not peripheral to our debates and discussions, but the way that the Bill is constructed follows normal convention. I confirm, as I did at Second Reading, that the Bill extends to the whole of the UK in the same way as the 1990 Act.
I understand the concern that the Bill does not appear to extend to Scotland, but the convention is that Westminster Bills extend to Scotland unless it is made explicit in a Bill that they do not. The converse is the case for Northern Ireland. The extent of the Bill mirrors that in the Human Fertilisation and Embryology Act 1990, including the provisions in Section 42 of that Act which concern consent to prosecution.
I can tell the noble Baroness that the devolved administrations have been consulted and have agreed to the Bill being extended in the way that it has.
I can say to the noble Lord, Lord Alton, that in Scotland prosecutions would be at the discretion of the Lord Advocate, as he suspected at Second Reading.
The noble Lord, Lord Alton, mentioned the word "steamrolling". I stress again that the Government see the Bill as a short, focused Bill which deals with the most immediate gap in the law following the 15th November judgment. I agree with the noble Lord that we need proper time to consider many of the matters raised in debate today. I think that the proper process will follow both the outcome of the appeal and also the House of Lords' Select Committee. I feel as strongly as he does that your Lordships' House will then need proper time to consider all the issues that have been raised.
I agree with the noble Lord's remark that the UK will do best when it combines good science with good ethics. The great strength of the 1990 Act and the performance of the HFEA has been to do just that. It is for that reason that we want to make sure that the whole arena is properly regulated.
Baroness Blatch: I am grateful to the Minister for his reply. I shall have to take his word that the issue is implicit in the Bill. To use the argument of convention is frankly rather a weak argument. The Parliament in Scotland has not been established long and its conventions are new. If the noble Lord was referring to the previous decade or so then I could understand the matter, but this is a new parliament.
If the Scottish Parliament was consulted and gave a considered view on the issue, can the Minister tell me whether discussions took place with the Scottish
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Parliament before Members of this House knew that all stages of the Bill would be taken in one day? We only learned that we should be doing that late last week. Is the noble Lord saying that a considered parliamentary view was made to the Government about the Bill before this House knew what the Government were going to do?
Finally, the Minister said that the rationale for the Bill is to deal with a gap that needs to be urgently plugged. No one who has spoken today—at Second Reading or in Committee—has argued against the need to plug the gap. But the noble Lord. Lord Brennan, made a powerful argument to convince me, and I suspect other Members of the Committee, that that gap is not being properly plugged. Here is an opportunity to plug it, which the Government have set their face against. I believe that we are all out of order, as that is not relevant to my amendment, but I would be pleased to hear the answer about who was consulted and in what form the Scottish Parliament responded to the Government ahead of today's debate.
Lord Hunt of Kings Heath: My understanding is that the devolved Administrations were consulted and agreed to the Bill. I am not aware that it was debated within the Scottish Parliament. It is of course for the Scottish Parliament and Administration to decide their own affairs. It is quite proper for there to be discussions between the various Administrations in the United Kingdom when Bills such as this come before Parliament; nothing improper or untoward has occurred.
Baroness Blatch: I was not suggesting that anything improper occurred, but it would seem that one official spoke to another official and that that was deemed to be a formal parliamentary response. I simply cast doubt on that.
Lord Hunt of Kings Heath: With the greatest respect, the degree to which the Scottish Parliament has been involved must be a matter for Scotland. From the Government's point of view, the important thing is that the necessary contacts were made with the different Administrations.
Baroness Blatch: I am not arguing with that, but simply saying that if I were a Member of the Scottish Parliament—or, more significantly, a member of the Scottish public—I would certainly have challenged the way in which the decision was made. But I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Alton of Liverpool Lord Alton of Liverpool moved Amendment No. 3:
Page 1, line 10, at end insert—
"( ) against a woman in the circumstances defined in subsection (1)."
The noble Lord said: I explored this point with the Minister on Second Reading, and he gave some clarification in his reply, for which I was grateful. The

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amendment is intended to deal with the point about inadvertent implantation that I made on Second Reading.
I think that we would all agree that there would be a great feeling of repugnance if a woman went out of her way deliberately to create circumstances in which she helped to bring about the cloning of a human embryo. My concern is for a woman who goes for in vitro fertilisation treatment and falls into the hands of an unscrupulous person—perhaps someone like Severino Antinori, who wants to push the borders of science just for the sake of it—or for a woman who undergoes treatment out of desperation and subsequently changes her mind. The Bill contains considerable penalties—we are talking about a 10-year period of imprisonment or the equivalent, if we consider it as a tariff, of a fine of up to £1 million. I am sure that none of your Lordships would want such penalties targeted at a woman in the circumstances that I have just described. Earlier, the Minister said that that could occur.
This is a probing amendment; I do not want to push the Government to the wire, as it were, on this today. Because of the way in which we are dealing with the Bill, Report comes immediately after the Committee—I must say in parenthesis that in 18 years in another place and four years here, I cannot recall any occasion, except when we dealt with emergency powers in Northern Ireland, on which we have dealt with a Bill in quite this way and at quite this speed. Therefore, the only way in which I can reserve my position is to say that no doubt honourable Members in another place can pursue the matter with the Government. I hope that the Government will at least take time to reflect on the implications if something like the amendment's provisions are not incorporated into the Bill. I beg to move.
Lord Hunt of Kings Heath: First, I thank the noble Lord, Lord Alton of Liverpool, for the way in which he moved the amendment. I certainly accept that the time constraint is a problem for all of us in this debate. The Government intend to reflect on points raised in your Lordships' House today.
I understand that the amendment is a probing amendment, so it may be unfair of me to point out its technical flaws. However, it would introduce an obvious ambiguity, as it suggests that only a man could be prosecuted for placing in a woman an embryo that has been created other than by fertilisation. Setting that aside, it must be said that in the context of the Bill the principal offender will be the person who places in a woman a human embryo which has been created other than by fertilisation.
However, under other provisions in the criminal law the woman in certain circumstances could also be prosecuted, but only if it were proved to the criminal standard of proof that she intended to assist or encourage the commission of the offence. Accepting what the noble Lord, Lord Alton, said, it is important that we have that ability. It would be aiding and abetting a criminal offence and one cannot ignore that.
I hope that I can reassure the noble Lord that that will occur with a woman who actively or knowingly seeks to have implanted in her an embryo created other than by fertilisation. I also hope that the noble Lord will recognise that in the circumstances I have described the circumstances he described would not face the kind of penalty he suggests. I believe that there would be a proportionate response and that it would have to be proved that a woman, involved actively and knowingly, sought to have implanted into her an embryo. On that basis, it is important to keep the provision.
10 p.m.
Lord Alton of Liverpool: I am grateful to the Minister for the way in which he has replied to the points. It would be good for me to go away and reflect on what he has said and to consider further whether the amendment should be pressed in another place. If that is appropriate, I shall speak to honourable Members and ask them to raise the matter again on Thursday. On the basis of the Minister's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Walton of Detchant Lord Walton of Detchant had given notice of his intention to move Amendment No. 4:
Page 1, line 10, at end insert—
"( ) In this Act "embryo" means "female gamete modified by nuclear transplantation.—
The noble Lord said: In my speech at Second Reading, I made clear that the purpose behind the tabling of this amendment was to try to clarify the definition of an embryo as defined in the Act. I did that in the light of the judgment in the High Court on 15th November. I now appreciate that, although in that judgment the judge referred to the importance of accepting that the Human Fertilisation and Embryology Act 1990 referred to a fertilised embryo, the judgment made it clear that an embryo produced by nuclear transplantation once it reached the two-cell stage was an embryo.
Hence, in my view, the amendment is unnecessary. Furthermore, it would not be sufficient to preclude the production of an embryo by parthenogenesis which might then be implanted in a human uterus. For that reason, the amendment is flawed and I shall not move it.
[Amendment No. 4 not moved.]
Lord Brennan Lord Brennan moved Amendment No. 5:
Page 1, line 10, at end insert—
"( ) For the purposes of this Act "fertilisation" means fertilisation of a human egg with a single human sperm."
The noble Lord said: The 1990 Act permits the fertilisation of an embryo by the union of a human sperm with a human egg. This Bill makes no cross-reference to the 1990 Act. The 1990 Act does not have a definition section setting out the definition of the word "fertilisation" and in any event there is no cross-reference.
The Bill provides that human reproductive cloning is prohibited otherwise than by fertilisation. The obvious question is: what is fertilisation? I am grateful to my noble friend, who at Second Reading clarified that in this context it meant the union of a human sperm with a human egg and that anything other than that was to be prohibited by the Bill. My amendment simply seeks to insert into the Bill that intent by a definition provision. If "fertilisation" is to be so interpreted, there is no reason why the Bill should not say it. It avoids confusion or debate.
If there is some other process of fertilisation of which I am unaware, it should be clear whether the Bill does or does not embrace it. This is a criminal law Bill. If this key word is not defined it will be the subject of argument.
Lord Winston: I am very sorry to cross swords again with my noble friend, but I have a problem in relation to this particular amendment. One of the obvious difficulties is a biological one. It is possible to have fertilisation of a human egg by more than one sperm. Polyspermy is a regular event in human biology and occurs both naturally and within in vitro fertilisation, particularly in those of older reproductive age. I do not refer to those who are very old, but people in their late 30s and early 40s are much more likely to have polyspermic fertilisation with more than one sperm entering the egg. Nearly always this results in an abnormal embryo which is not viable.
As the Committee will be aware, a sperm has a single set of chromosomes, as does the egg. If two sperm enter the egg there are three sets of chromosomes instead of the normal two. Usually this so-called triploidy is nonviable. Sometimes it is possible by micro-manipulation to remove one set of chromosomes so that effectively one has an abnormal fertilisation with more than one sperm. By intricate surgical work someone may, theoretically, remove one set of chromosomes to return to euploidy, which is the normal complement of one set of chromosomes from two parents. For that reason, if for no other, to leave the wording as it currently is must be correct.
I understand that as an excellent lawyer my noble friend wants precise definition, but the notion of fertilisation is itself quite sufficient for the purposes of this Bill. After all, the real problem here is not so much fertilisation but the placing of what we all regard as a suspect embryo into a woman's uterus. Therefore, the problem is the potential to produce a cloned human being. I believe that it is better to leave "fertilisation" as it stands rather than try to define it. I have concentrated on only one aspect of fertilisation, but biologically there are others.
Lord Brennan: Before my noble friend sits down, can he explain to the Committee what would be his response if a layman asked him what "fertilisation" meant for the purposes of this Bill?
Lord Winston: That is an extraordinarily interesting question. The noble Baroness, Lady Blatch, looks at me incredulously. I can tell her that every single
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biologist will have a different definition of fertilisation. To some, fertilisation is the penetration of the outer coat of the egg, the zonapellucida, with a sperm; to others, it is the penetration of the ooplasm; to others, it is the formation of a pronucleus inside the egg; to others, it is the beginning of cell division.
Many people do not regard an egg as fertilised until there are two separate cells. That reflects a fundamental problem in biology. The reason it is so important is that some would argue that life begins at the moment of conception. However, biologists encounter a problem in that there is no definitive moment of conception. Conception is a continuous process which takes place over around 24 hours. For that reason, it would be better riot to define fertilisation in greater detail than has been set down in the Bill. Furthermore, unless I am mistaken, that would reflect what was set out in the 1990 Act.
Baroness Blatch: The noble Lord remarked that I looked incredulous. Perhaps I have a rather naïve understanding of the legislation which passes through your Lordships' House; namely, that when words are put on to the face of the Bill, they should mean something. If the Minister representing the government of the day is asked what certain words mean, we expect to receive a definitive answer. If no definitive answer is available, we may be forgiven for feeling somewhat confused.
The words set down in the Bill state that:
"A person who places in a woman a human embryo which has been created otherwise than by fertilisation".
If an embryo is created in a way "otherwise than by fertilisation", then the word "fertilisation" must have some meaning. The noble Lord, Lord Brennan, is seeking to give it meaning. An attempt was made to do that at the end of Clause 1 of the 1990 Act.
I believe that the argument which has been put forward by the most eminent scientist in our midst was, frankly, unacceptable.
Lord Winston: Perhaps I may respond to the noble Baroness. I do not agree with her comment. In the Bill it is clear what is meant by "fertilisation"; it means the production of embryos using sperm and egg. That is quite sufficient and is also what is meant in the 1990 Act. I doubt whether it would be sensible to seek to define it in any more detail.
Baroness Blatch: Perhaps I may put one further question to the noble Lord. If that is the definition now being given by the noble Lord, then had the noble Lord, Lord Brennan, specified "a single sperm and/or sperms", would that have been an acceptable definition for the purposes of the Bill?
Lord Winston: The noble Lord, Lord Walton, has mentioned parthenogenesis, which some would regard as a form of fertilisation. Perhaps the difficulty here is one of semantics. However, I am not sure whether I am helping with my interjection to the debate. Indeed, I

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see that I may be causing some annoyance to my noble friends on the Front BenchI am pleased to learn that that is not the case.
The fundamental difficulty here is that there is no precise biological definition of fertilisation. Having said that, however, what is referred to here is the mixture of gametes; egg and sperm—whether we mean one or two does not matter. What is important is cell nuclear replacement leading to the production of the embryo which is then placed in the uterus. That is what the Bill seeks to avoid.
Lord Hunt of Kings Heath: This has been an interesting debate. It has demonstrated the difficulties of definition when considering biological processes and has highlighted a problem generally encountered in legislation; that is, the more precise the definition, the more that may be excluded. That is certainly true in relation to the issue before the Committee.
The Bill has been phrased in such a way that the only embryos that may be implanted are those created by fertilisation. Embryos created by fertilisation are fully within the remit of the 1990 Act, which states in terms that no person may create, keep or use an embryo using fertilisation without a licence from the HFEA. Embryos that may be implanted under the terms of this Bill are those which are fully subject to the 1990 Act. That legislation is careful to set out exactly when the protection begins to apply, not least because it is important to establish the commencement of the 14-day rule for research.
If the amendment were accepted, we might risk a clash between the definition of fertilisation in this Bill and the careful approach taken in the 1990 Act. That would present the danger of introducing conflict between the 1990 Act and the definition used in the Bill before the Committee. It is essential that all embryos are covered either by the 1990 Act or by this Bill. For that reason, I would ask my noble friend to think carefully before he presses his amendment. Ultimately, the way in which the Bill is constructed ensures that what is not caught by the 1990 Act will be caught by the Bill. That is the beauty of the single focus given in it.
10.15 p.m.
Lord Alton of Liverpool: Before the Minister sits down, perhaps he can help me on a point of clarification. In the principal terms used in the Human Fertilisation and Embryology Act 1990, Section 1(b) states:
"references to an embryo include an egg in the process of fertilisation".
Do the Government uphold that definition in the context of the Bill before us today?
Lord Hunt of Kings Heath: That is certainly the definition given in the 1990 Act. We do not want in the current Bill a wording defining "fertilisation" which is different from that which appears in the 1990 Act. The substantive point is that if the embryo is created by
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fertilisation, that act is covered by the 1990 Act and the HFEA is fully responsible for regulating and licensing, whereas we are attempting in this Bill to cover the situation where embryos are being implanted which have not been created by fertilisation. It is on those definitions that the Bill rests.
Lord Brennan: It is important not to give in to the scientific brilliance and oratorical charm of my noble friend Lord Winston and to ensure that we apply common sense in construing a criminal statute. If a judge is directing a jury with a defendant facing a 10-year term of imprisonment if convicted, and a jury says to the judge by way of question, "Before we consider our verdict, please tell us what 'fertilisation' means in this context?", the judge cannot reply, "That is a very interesting question which is scientifically very complicated. Do the best you can"; he cannot say, "Look at the 1990 Act", because the Bill does not refer to the 1990 Act; and he cannot say "Go home tonight, turn on the television and see if Lord Winston is covering it on one of his programmes". It is simply unrealistic.
My desire is not to confuse or to cause semantic difficulty but to enable a jury to perform its task, upon proper direction, when deciding a serious criminal charge. I fear that my concern has not been met. I propose to withdraw the amendment, but I invite my noble friend the Minister—to whom I am grateful for his replyfurther to consider how a judge directs a jury as to the meaning of "fertilisation".
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 6:
Page 1, line 10, at end insert—
"( ) In this Act "placing" includes collaboration in the surgical process of placing an embryo in a woman."
The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendment No. 7. Both amendments are self-explanatory; they seek to clarify what "placing" means. The Government have not attempted to do so.
If the criminal act is the placing of an embryo created by CNR into a woman, there will be more than one person involved in the process. A number of people along the line will assist knowingly and positively in that process. I was about to say "wilfully" but, nevertheless, they will be positively involved both in collaborating with the surgical process of placing an embryo in a woman and, as indicated in Amendment No. 7, in collaborating with any preparatory work. This process does not just happen; a great deal of work is undertaken in the human reproductive cloning process prior to the implantation, or "placing", which is the word used in the Bill, of an embryo into a woman. I added at the tail end of my Amendment No. 7 that "placing" should not include the donation of genetic material, again thinking along the lines of the noble Lord, Lord Alton. There will be occasions when there will be wilful collaboration, or positive collaboration, and there will be other times when it will be a matter of an innocent involvement on the part of the woman. I know the arguments both for and

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against. Nevertheless, it is important to clarify what "placing" means and where the culpability and the responsibility for what will be a criminal act under the terms of the Bill properly lie. I beg to move.
Lord Alton of Liverpool: I support the points made by the noble Baroness, Lady Blatch. Perhaps I may ask the Minister specifically about a report that appeared in yesterday's Sunday Times, under the headline,
"British expert may join bid to clone humans".
The report states:
"A leading British infertility specialist is in talks with Severino Antinori, the Italian doctor, to help to set up a project to make human clones.
Gedis Grudzinskas, professor of obstetrics and gynaecology at London University and director of the Bridge Clinic, a private IVF centre, said he had been contacted by Antinori".
Will the Minister place it on record that, were such collaboration to occur, he would expect the full force of British law to be used against collaborators who take part in an act which—to refer back to a point made earlier by the noble Lord, Lord Brennan—could simply be the issue of process rather than culmination?
All of us are concerned about a gap that is opening up in the Bill. Although it will be an offence to place in the womb of a woman a cloned human embryo, it will still not be an offence to set about the creation of such a clone. If, subsequently, that were to be placed in an artificial incubator or in the womb of an animal, there is nothing in the Bill to prevent that from happening. The concern is with what takes place in the initial stages and with the collaboration that occurs. I hope that in his reply the Minister will say something about the penalties that he would expect to be imposed on those who participated in such collaborative acts.
Lord Hunt of Kings Heath: The amendments seek to include collaboration in the process of placing an embryo in a woman. They introduce the term "collaboration" into the criminal law in this area.
My advice is that the criminal law already covers fully the participation in a criminal offence of third parties, so that anyone who knowingly and actively helps a person to conduct an offence under the terms of the Bill may be subject to a charge of aiding and abetting, counselling, procuring or conspiring.
These are well-established legal procedures. In addition, the amendment refers to the "surgical process" of placing an embryo in a woman when that might not include such a process and, if it did, it is not clear what would be included; nor does it state what might be included in preparatory work. For instance, would that include a person who donates an egg for research into which the genetic material is to be transferred?
In essence, the amendment could introduce considerable uncertainty. If it were accepted, would other procedures, such as aiding and abetting, be excluded? "Collaboration" as a concept overlaps with many of these other areas of criminal law. The amendment would serve only to make the law unclear as it relates to secondary participants.
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As regards the word "placing", it would surely be given its ordinary and natural meaning. Returning to the issue that we debated in relation to the amendment of my noble friend Lord Brennan, if one tries to define this area overmuch, one runs into problems of excluding possible loopholes in this legislation in the future.
The noble Lord, Lord Alton, asked what action would occur in the event of a UK resident collaborating with the Italian doctor—if doctor he is. Such collaboration would be dealt with under the terms of aiding and abetting, counselling and procuring.
If the Italian person who has been named was involved in collaborating with a British clinic, the HFEA would have a certain competence. When considering licences, it can take account under the Act of the character of the licence holder. The authority has limited powers in respect of non-licensable activities in a licensed clinic. There is some comfort, in that a person conducting affairs from a licensed clinic might jeopardise their licence if they were behaving in the way suggested by the noble Lord.
Lord Alton of Liverpool: I am grateful to the Minister. That sends the right signal from our debate. Will he make it abundantly clear that he would expect the HFEA to act in that way for any such process that took place in a UK clinic, even if it did not culminate in the placing of a cloned human embryo in a woman, but, as the noble Baroness, Lady Blatch, suggested earlier, it resulted in the sale or export of a cloned human embryo? Will he also deal with a point that. I raised on Second Reading concerning the Immigration Act 1971 and confirm that it would have been possible, in the public interest, to have excluded Severino Antinori from entering the United Kingdom in any event, even without this legislation?
Lord Hunt of Kings Heath: That is open to contention, because without the Bill he would not be committing any offence if he came to this country. The judgment of 15th November has concluded that there is no regulation in that area. As he comes from another EU country, there might be great difficulties in implementing such a ban. The Home Secretary's decision would certainly be open to judicial review.
The noble Lord's point about the clinic has to be a matter for the HFEA rather than for a Minister. In the circumstances that I have mentioned, the HFEA clearly has certain powers that go outside its regulation of a licensed clinic. It provides some comfort that a licensed clinic in this country would have a great deal of inhibition about engaging with the Italian or with anyone else who wished to do the same. I have not read the Sunday Times article that the noble Lord mentioned, but the person whom he mentioned made the point that they would wish to do that only if they felt that it was being done in a proper, appropriate arid regulated way.
Baroness Blatch: I am baffled by the Minister's explanation. I shall press him on one or two points.

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I would be very pleased if what I believe the Minister to have said is in fact the case. Before this evening, my understanding was that the criminal act was very narrowly drawn—those are the words used by the Minister—to include only the placing in a woman of a human embryo that has been created otherwise than by fertilisation. Many of us felt unhappy about that and felt that the process by which one arrived at the point of placement remained a lacuna. That meant that, again in the Minister's words, the aiding, the abetting, the counselling, the preparatory work and the whole process leading to the placing of the embryo in a woman were not included in the Bill.
If the Minister is saying that the process, the counselling, the aiding, the abetting and anybody who has anything to do with the process from the commissioning of the project right up to the placing is included—that is what he appears to have just said—I shall be extremely happy and I shall regard my amendments as otiose.
Secondly, it would seem that the noble Lord has invalidated the need for the Bill. If my reading of what he has just said in answer to the noble Lord, Lord Alton, is correct, who then is culpable? As I read the Bill, the person who places the embryo in the womb of a woman is the person guilty of the crime. That is not what the noble Lord has just said. He has said that the people who aid, abet and counsel—and there was a fourth word used—those also party to and collaboratively involved, would also be culpable. Then who is guilty? Is it corporate guilt? Is it a number of individuals who are guilty?
I am very happy with what the noble Lord has said in his response to this amendment, but I am deeply suspicious of what has been said and I would welcome its repetition.
10.30 p.m.
Lord Hunt of Kings Heath: I am sorry that the noble Baroness is deeply suspicious. I understand what the noble Baroness seeks to do. It seems to me that she is seeking to ensure that those people who have assisted people to offend against the terms of this Bill should be caught. It is my understanding that, under the criminal law, people who aid, abet, counsel or procure in the context of this Bill, which then leads on to a criminal act, would be caught by those circumstances.
The second point raised by the noble Baroness is in relation to my comments to the noble Lord, Lord Alton. This is a rather different kettle of fish. It relates to British clinics which might collaborate. The example he used was someone coming from abroad who wished to engage in these activities. To a certain extent, this comes within the regulatory framework under which the HFEA operates. Under the Act the HFEA, when considering licences, can take account of the character of the licence-holder. The authority also has limited powers in respect of non-licensable activities in a licensed clinic. Therefore, in the
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circumstances which the noble Lord, Lord Alton, has raised, the person involved might thereby jeopardise their clinic.
Baroness Blatch: I am becoming more and more attracted to the answer that the noble Lord has given to me, setting aside the issue about clinics and the regulatory framework of the HFEA.
What I now understand the noble Lord to be saying is that anybody who aids, abets, counsels or procures, as part of the process towards the placing of a cloned embryo in a woman, will be caught by the criminal terms of the Bill. All of them will be, not including the process. The answer therefore is that both of my amendments are subsumed within the Bill; that is, my first amendment in relation to collaborating in the process, and my second amendment in relation to all of the preparatory work leading to the process of placing the embryo in the woman.
I am extremely happy with that and that my amendments are subsumed in this Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 7 not moved.]
Clause 1 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 8:
After Clause 1, insert the following new clause—
"DEFINITION OF EMBRYO
In this Act, except where otherwise stated, references to an embryo include—

(a) a unicellular embryo;

(b) a totipotent embryonic stem cell; and

(c) an egg undergoing a process which will lead to the formation of an embryo."

The noble Baroness said: Amendment No. 8 is a technical amendment. The proposed paragraph (a) refers to a "unicellular embryo"; that is, a one-cell embryo.
Amendment No. 8 will extend the definition of "embryo" and prevent the placing of a one-cell embryo, created otherwise than by fertilisation, into a woman. It might be thought that the Bill already prevents that. But as the law now stands, that is not the case. This amendment is needed to close a serious loophole that was exposed by the ProLife Alliance in the High Court and is not dealt with by the Bill as drafted.
In court the government lawyers were forced to concede that, according to their arguments, a one-cell "entity" created by cell nuclear replacement was not an embryo. Mr Justice Crane left open the question of whether a one-cell entity created by nuclear replacement would be an embryo from a scientific point of view. Clearly he held that it was not an embryo from a legal point of view. But scientifically he was not sure and in paragraph 49 of his judgment he held as follows:
"there could be doubt whether that organism [the CNR product] was an 'embryo' prior to the two-cell stage … It may well be that responsible researchers would treat the organism as subject to control … However they would not be obliged to do so".
Unless Amendment No. 8 is accepted, the Bill will not prohibit the placing in a woman of the one-cell product of cell nuclear replacement. By accepting this amendment Parliament would extend the definition of an embryo to include the one-cell product of cell nuclear replacement and would therefore ensure that the ban covers such embryos as well.
It is a fact that a one-cell CNR entity could be placed into the fallopian tube of a woman with the potential to carry on developing. It was surprising to hear that the noble Lord, Lord Hunt, when speaking earlier today, was setting much store by the hope that the Appeal Court may solve the regulatory problems by overturning Mr Justice Crane's judgment in favour of the Pro Life Alliance. In fact, the consequences of such a ruling on appeal would create its own regulatory problem; it would leave one-cell CNR entities outside the scope of this Bill.
The Government's legal team accepted that the worrying exclusion would follow from their own arguments. Therefore this is a case of heads the Government lose and tails the Government lose. No legal remedy remains for the Government's problems in this area. For that reason I regard the new paragraph (a) as absolutely necessary.
New paragraph (b), which refers to,
"a totipotent embryonic stem cell",
deals with another serious loophole which exists in the Bill as now drafted. It may be that the Bill does not prohibit the placing of embryonic stem cells into women. The fact is that such cells have the potential to develop as embryos. That that is so is beyond doubt. Over the past few years researchers have managed to grow mice and cows by implanting mice and cow stem cells into female mice and cows.
If Members of the Committee will be patient, I shall read the titles of some of the published papers which deal with that practice. First, Nagy A et al, Derivation of completely cell-derived mice from early-passage embryonic stem cells. That paper was published in the proceedings of the National Academy of Sciences in the United States as long ago as September 1993. Secondly, Wang ZQ et al, Generation of completely embryonic stein-cell derived mutant mice using tetraploid blastocyst injection, again published in Mechanisms of Development, in March 1997. Thirdly, Iwasaki S et al, Production of live calves derived from embryonic stem-like cells aggregated with tetraploid embryos. That paper was published in Biology of Reproduction in 2000.
If Amendment No. 8 is not passed, then cloners will be able to by-pass the parliamentary prohibition on live birth cloning by implanting embryonic stem cells into women. The stem cells could then develop as embryos inside the women.
Finally, paragraph (c) relates to,
"an egg undergoing a process which will lead to the formation of an embryo".
Amendment No. 8 will ensure that no non-fertilised entity which cannot yet be described as an embryo, but if left to develop will turn into an embryo, can be implanted into a woman.
The Human Fertilisation and Embryology Act 1990 took care to ensure that even,
"eggs in the process of fertilisation"
which might not yet be embryos would nonetheless be treated as embryos for the purposes of the law.
Section 1(1)(b) of the HEE Act provides that,
"references to an embryo include an egg in the process of fertilisation".
The amendment provides a similar extended definition to cloned embryos as already exists for fertilised embryos. Without the amendment scientists would be able to place in a woman an entity which was not yet an embryo but would, if allowed to develop, whether inside or outside a woman, turn into an embryo. I beg to move.
Lord Alton of Liverpool: I support Amendment No. 8 which the noble Baroness, Lady Match, has just moved. In doing so, I refer the Committee to the Human Fertilisation and Embryology Act and to the principal terms used in Part I which states:
"In this Act, except where otherwise stated—

(a) embryo means a live human embryo where fertilisation is complete, and

(b) references to an embryo include an egg in the process of fertilisation, and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote".

Embryo means a live human embryo where fertilisation is complete. Effectively, the Government's appeal before the High Court sought to render those words redundant. That clearly has to be read in conjunction with the phrase,
"fertilisation is not complete until the appearance of a two cell zygote".
The Government went to the High Court determined to win the point that a one-cell cell nuclear replacement entity is not an embryo. Paragraph 49 of the judgment handed down by Mr Justice Crane agreed with that. That points to a lacuna in the definition in the 1990 Act and in today's Bill. It may be that the Government do not like the amendment that has been placed before the Committee today, but their own failure to bring forward a new definition of "embryo" will lead to further uncertainty; it will not lead to settled law. Failure to resolve this will simply lead to fresh applications to the courts in due course.
This is a Bill dealing with criminal law. As the noble Lord, Lord Brennan, said earlier, the Bill carries a long prison sentence upon which juries will have to determine an outcome and/or the equivalent of a El million fine. Therefore, to leave a glaring ambiguity at the heart of the Bill exposes members of the scientific community in the United Kingdom to criminal proceedings. It leaves the Government open to fresh legal challenge and it leaves it likely that through this coach and horses gap will come galloping the very practices which every Member of your Lordships' House has sought today to outlaw.
If the Minister does nothing else today, I should be grateful if he would set out for us his definition of the human embryo. Earlier, in answer to an intervention I made, he upheld the provision of Section 1(1)(b) of the

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principal terms of the 1990 Act. I hope that in this context he will reiterate that. I also invite him to clarify three other brief points. First, when does an embryo cease to be an embryo and become a foetus? That is the point to which the noble Baroness, Lady Blatch, alluded during the Second Reading debate earlier. If, for the sake of argument, for instance, a cloned embryo were to be gestated in an animal until it becomes a foetus, would the current Bill still apply? That, of course, is not merely an academic concern, horrific though it sounds; it has already been mooted in many parts of the scientific community overseas.
Secondly, would it be possible for the Human Fertilisation and Embryology Authority inspectors to distinguish between normally fertilised human embryos and those that have been created by cell nuclear replacement? How is that policing to be carried out? How will it be done in practical terms?
Thirdly, given his remark that the Bill will prohibit exportation of cloned embryos from the United Kingdom, will he say how that conforms with the judgment? The Minister shakes his head to indicate that he did not say that. In that case, will he clarify at this point in the Committee proceedings that it will indeed be possible for cloned human embryos which have not been implanted in a woman to be exported from this country and implanted overseas? Is that in conformity with the judgment, for instance, in the Diane Blood case which allowed her to go abroad for posthumous conception?
With those comments and with those questions I reiterate my support of the amendment which the noble Baroness, Lady Blatch, has laid before the Committee this evening.
10.45 p.m.
Lord Walton of Detchant: I am puzzled as to whether this amendment is absolutely necessary. Can the Minister clarify one or two points? First, it is perfectly clear that once a sperm has penetrated an ovum the single cell so created is an embryo. I accept that. However, is a single cell into which a nucleus has been transplanted at that stage an embryo or, as the legal judgment on 15th November suggested, does it not become an embryo until it has reached the two-cell stage?
Of course, totally potent embryonic stem cells can be produced only by the development of such cells from embryos, however they are created. I would like such matters clarified before considering the amendment so eloquently proposed by the noble Baroness, Lady Blatch, and the noble Lord, Lord Alton.
Lord Hunt of Kings Heath: This amendment seeks to define what an embryo is for the purpose of the Bill. The way in which the Bill is drafted means that if an embryo is created other than by fertilisation, whatever the means, that embryo may not be transplanted into a woman. My concern is that the amendment could restrict the class of embryos that may not be placed in
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a woman. Of particular relevance is a reference to a totipotent embryonic stem cell, which has no relevance as it simply cannot develop into an embryo. But it could be used to stop therapeutic research, which the Government are anxious not so to do.
Baroness Blatch: I am grateful to the Minister for giving way. Does he agree that the case in the High Court argued by the Government's lawyers relied upon the fact that the one-cell CNR entity is not an embryo? The case hinged on that. So to that extent the judge, as I read out in paragraph 49, agreed with that. If it is not an embryo, the answer just given by the Minister does not apply.
Lord Hunt of Kings Heath: The Government lawyers did not concede that one-cell embryos created by CNR are not embryos. The Government's view is that a one-cell embryo is in fact an embryo.
Lord Winston: Perhaps I can help the Minister. I know that earlier we were told that we may not use common sense in the debate, but it seems to me that anything that grows in the uterus and becomes a foetus is, by definition, an embryo. Therefore this Bill covers that in the wording and there is no need for further clarification.
Lord Hunt of Kings Heath: The Government want to ensure that the ban encompasses all methods of creating embryos, including those methods not considered possible today. It is clearly essential that we restrict, as this Bill does, embryo implantation to those created only by fertilisation, which are fully regulated by the 1990 Act. The noble Lord, Lord Alton, asked when embryos become foetuses. That is open to debate. Some authorities say two months and some say more. On the issue of the HFEA inspection distinguishing between CNR and fertilised embryos—
Lord Winston: Perhaps I can try to help my noble friend. All noble Lords are clear that we do not want to see reproductive cloning. At the time of the "embryo transfer" it is true that we may not know whether something is an embryo or not. In my view, the chance of a single cell implanting and becoming a baby is very small. I agree that it could be transferred to the fallopian tube where, under the current type of procedure that is available, such as zygote transfer, it might become an embryo. It would have a small chance of doing so and then might become a baby.
However, the truth is that, if the matter were pursued through criminal law, anything not produced by fertilisation would automatically be covered. Once the embryo became a baby, we would know that reproductive cloning had taken place. Therefore, there is no need for further clarification. It is very clear that the current wording of the Bill is perfectly adequate to cover the purposes of the Government and, indeed, I believe, to cover the purposes of everyone in this House.
Lord Hunt of Kings Heath: I am grateful to my noble friend. At the end of the day, either the embryo has

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been fertilised and is therefore covered by the 1990 Act and by the role of the HFEA in regulating and licensing or the embryo has not been fertilised and will he covered by this Bill. That is the essential point of what we are seeking to legislate for.
I say to the noble Lord, Lord Alton, that the issue of exports depends on the outcome of the judicial review. If the Government eventually lose the case in relation to that review, that will clearly be one issue to which we shall need to return when we consider what the Government should do.
In general, it seems that, again, the risk is that if the noble Baroness's amendments were passed, in effect, legitimate therapeutic research would be inhibited. I believe that we need to rely on the general intent of this Bill, which, coupled with the 1990 Act, should ensure that human reproductive cloning is caught one way or the other.
Baroness Blatch: The Minister made an interesting comment at the end. We are creating a criminal act. We are creating the conditions under which individuals could go to court and receive sentences of up to 10 years. When it comes to court procedure, the idea that we should have no definitions of this or of that, that we should be general and that the more one specifies issues the more difficult it will be is not good enough. If the noble Lord, Lord Brennan, were in his place now, I would remind him that his earlier arguments were very potent. When it comes to a judge making a judgment about whether or not someone has committed a criminal act, very precise definitions will be placed on some of the terms within the Bill.
Perhaps I may also say to the Minister that he has argued quite contrary to his lawyers in court. If the Government argue, as they did in court, that the one-cell, CNR entity is not an embryo, my amendment is indeed required. However, if, as the Minister argues tonight, it is an embryo, all cloning would be banned. If the Government won their case on appeal, the one-cell, CNR entity would remain outside the governance of the Bill. I do not believe that that is what the noble Lord expects. I hope that, on reflection of the arguments that he has given tonight, he will return to me on this point, preferably before the Bill is considered in another place. I believe that this matter may well be the subject of further action in court.
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The way in which the Bill has been put before the House and the way in which we must deal with all its stages in one day makes matters almost impossible for Members of this House. Over the past weekend, I and, indeed, my noble friends have experienced difficulty in getting to grips with some of the technicalities and with some of the ethical, moral, technical and scientific issues of the Bill. It has been extremely difficult. Therefore, I am not surprised that there will be a great deal of confusion, especially as we have eminent scientists who say, "The definitions do not matter. Trust us; it will all be all right".
We have had highly unsatisfactory answers from the Government on most of the amendments. I hope that Members in another place will take heed of at least some of the arguments that have been advanced in the House this evening and make the Government come up with better clarification and better answers. Very sadly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Short title and extent]:
[Amendment No. 9 not moved.]
Clause 2 agreed to.
House resumed: Bill reported without amendment: Report received.
Bill read a third time, and passed, and sent to the Commons.
Lord Carter: My Lords, I beg to move that the House do now adjourn during pleasure to await a message from the Commons regarding the antiterrorism Bill. Rather than specifying a particular time at which to resume, I suggest that the House adjourn during pleasure until after midnight. We shall place a notice on the Annunicators some five minutes before the House resumes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 10.57 p.m. until 12.30 a.m.]

Anti-terrorism, Crime and Security Bill
Brought from the Commons; read a first time, and to be printed.
House adjourned at twenty-seven minutes before one o'clock.