HL Deb 26 November 2001 vol 629 cc106-30

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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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

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 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 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 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.

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.

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 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 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—

  1. (a) a unicellular embryo;
  2. (b) a totipotent embryonic stem cell; and
  3. (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—

  1. (a) embryo means a live human embryo where fertilisation is complete, and
  2. (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 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 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 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.

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.]