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Mr. Redwood: The Minister makes a powerful case for committing us to the legislative seas, and I welcome what she has said about the Government's intentions, but would not it be better to go to sea in a boat than in a sieve? She has also admitted that there will be many loopholes in the legislation that she is proposing, and she has not explained that.
Ms Blears: No, I have made it clear that the Bill is aimed at preventing the mischief of human reproductive cloning in the UK, and I have explained that the Bill will succeed in doing so.
The Government's view on the regulation of CNR embryos used in research is that the practice should not be banned, but that it should be allowed to continue under the strict regulatory scheme of the 1990 Act. That will properly put into effect the will of Parliament, which was decided after lengthy debate on the research regulations earlier this year.
Lynne Jones (Birmingham, Selly Oak): The problem is that human reproductive cloning does not begin when the embryo is implanted into the woman. The process involved is similar to that used in therapeutic cloning, which is completely unregulated in this country, as my hon. Friend the Minister has acknowledged. That is a far
more urgent matter than banning the implantation of such an embryo. No one has so far created an embryo ready for implantation, but we allow people to experiment in that direction. That is the big loophole that the Bill does not close.
Ms Blears: My hon. Friend would be the first to acknowledge that the science in this area is moving on very quickly indeed. We must take measures to ensure that no embryos are implanted in women in the way that has been described.
Lynne Jones: Will my hon. Friend give way on that point?
Ms Blears: No, I want to make progress, and deal with the provisions of the Bill.
The Bill is very simple, with just two clauses. The first clause deals with the offence, and provides that a person who places in a woman a human embryo that has been created otherwise than by fertilisation is guilty of an offence. The wording is very similar to that used in the 1990 Act, which, for example, makes it an offence to place in a woman an embryo other than a live human embryo.
If the embryo has been created by fertilisation—that is, using sperm and eggs—it will fall into the definition of "embryo" under the 1990 Act, and will be subject to all the protection of that Act. However, if the embryo has been created in any way other than by fertilisation—and that includes techniques such as cell nuclear replacement and parthenogenesis—it may not be implanted into a woman. As I mentioned earlier, by not defining or listing these techniques we have ensured that the Bill bans any procedure that is currently known about, and those that may be developed in the future.
Any attempt at listing or defining banned procedures would almost certainly ensure that this Bill would be out of date within months, given the advances taking place in this area. We have therefore adopted the approach that makes it an offence to place any embryo into a woman other than one created by fertilisation. That is a sensible approach in the current circumstances.
The Bill provides also that a person who commits the offence is liable on conviction on indictment, in a Crown court, to a term of imprisonment not exceeding 10 years, or a fine, or both. However, as with offences under the 1990 Act that also raise particular issues of public policy, a prosecution cannot be brought under the Bill without the consent of the Director of Public Prosecutions.
Mr. Michael Weir (Angus): Clause 1(3) provides that a prosecution can be brought only with the consent of the DPP. I have tabled an amendment for consideration in Committee because I am concerned that there is no provision to ensure that, in Scotland, such a prosecution may be brought might only by the Lord Advocate. There exists in Scotland a procedure that allows private prosecutions to be brought, although its use is extremely rare. I am worried that the Bill does not specifically close that loophole.
I should be interested to know what the Minister thinks about that, as I can think of two such cases that have been brought in the past few years.
Ms Blears: I am aware that the hon. Gentleman has tabled an amendment on this matter, so it might be helpful if I deal with the point now.
In Scotland, the Lord Advocate heads the prosecution system. Constitutionally, he is the only person who can institute criminal prosecutions, unless someone has applied for a Bill of Letters to be issued in the High Court of Justiciary for permission to bring a private prosecution. That course of action is extraordinarily rare.
The situation in Scotland is therefore different from that in England. In Scotland, it is normally the Lord Advocate who brings prosecutions, whereas in England prosecutions can be brought by local authorities and a range of different enforcement authorities. In England, therefore, in connection with matters of public policy, legislation must provide that the DPP will be consulted. In Scotland, the person normally bringing proceedings is the Lord Advocate, so the Bill need not contain an equivalent requirement. The constitutional difference means that the Lord Advocate will normally be the person bringing the prosecution, so there is no need to seek his consent or involve him in the proceedings.
It is a technical, legal distinction, but an important one, given the different legal systems in Scotland and England.
Mr. Lansley: I recognise that in clause 1(3) the Minister is simply following the provisions of section 42 of the 1990 Act, but would not it have been simpler and more targeted for the Government to amend section 3(2) of that Act? That would have brought the placing in a woman of an embryo created otherwise than by fertilisation under the short list of prohibitions contained in that section. The result would have been that an offence would have been created in the same way as is provided for in the Bill. Why do the Government prefer to have two pieces of legislation, when one could have been amended?
Ms Blears: I am not sure that the hon. Gentleman is correct. The 1990 Act is extensive, with many clauses and schedules and many definitions. I am not convinced that his suggestion is a more accurate drafting point. The Bill is drafted to achieve an objective. I believe that it will achieve that objective, and that the House should support it this afternoon for that reason.
Clause 2 extends the provisions of the Bill to Northern Ireland, and provides that it may be extended to the Channel Islands if an order is made. The Bill is a UK Bill, and so of course extends to Scotland and Wales. That makes the extent of the Bill the same as that of the 1990 Act.
Questions have been asked about the extension of the Bill to Scotland. I should like to reassure hon. Members that the Bill does extend to Scotland, and that the offences under the Bill cannot be prosecuted in Scotland without the permission of the Lord Advocate. The convention for Westminster Bills that apply to Scotland in this way is that they all apply to Scotland unless the converse is stated on the face of the Bill.
These are wholly reserved matters. The right hon. Member for Berwick–upon–Tweed (Mr. Beith) asked whether a Sewel motion would be needed on this issue, but I can assure him that it is a wholly reserved matter. Schedule 5, part II, head J3 to the Scotland Act 1998 covers embryology, surrogacy and genetics, and specifically refers to the subject matter of the 1990 Act. It is therefore covered perfectly properly in the Bill.
The Bill does not use terms such as "cell nuclear replacement" or "cloning" because such terms may mean different things both now and in the future in an area of rapidly developing science, and because the Bill is aimed at preventing anything other than fertilised embryos using sperm and eggs from being implanted into a woman. That is the mischief at which it is aimed.
The additional and very significant benefits of that approach arise from the fact that all embryos created by fertilisation—which are the only embryos that may be implanted under this Bill—are automatically subject to the full protection of the 1990 Act. That means that the only embryos that may be implanted into a woman are those that are subject to licensing by the authority.
The only question that needs to be asked, therefore, is: how was the embryo created? If the answer is by fertilisation, the embryo may be implanted, but only in accordance with a licence. If the answer is by a means other than fertilisation, as a result of this Bill the embryo may not be implanted at all. This approach means that current and future techniques that may not be described as cloning will be fully covered by the ban.
As we have seen with the 1990 Act, the science is developing. What is not thought possible as an embryo today may well be an embryo tomorrow. This Bill concerns reproductive cloning. It addresses those embryos that may develop to become a human being. There is absolutely no reason why we should seek to restrict the definition of what an embryo created other than by fertilisation is, because any such attempt is likely to become out of date in a short time. Nor is there any point in trying to define what we mean by an embryo created by fertilisation because that is fully covered by the 1990 Act.
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