Human Fertilisation and Embryology Bill [Lords]

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Mark Simmonds: I thank the Minister for that answer and for the offer to keep me in touch as the HFEA develops its thinking and makes progress in that area. I would certainly like to take her up on that offer. I am pleased that the HFEA recognises that there is an issue that needs to be addressed, and I was comforted by the fact that the Minister felt progress was being made.
Of course, I understand that the community is small and that no particular clinic likes to be criticised, whether that criticism is justified or not. There are clearly sensitivities. Certainly, one of the things I felt when meeting people involved in the clinics was that they tended to divide into two camps: those who were satisfied with the reports and inspections they were getting from the HFEA, and those who definitely were not. This is not the only reason why they were not satisfied, but clearly progress needs to be made. I also understand that we cannot possibly have a situation where we are over-restrictive on the recruiting pool. We need to have appropriate number of inspectors to make inspections, and particularly to produce the interim reports at the end of a licence. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.

Clause 6

Additional general functions of Authority
Mark Simmonds: I beg to move amendment No. 4, in clause 6, page 5, line 35, leave out subsection (3).
The amendment relates particularly to the charging of fees specifically to give advice. There is no question that there is a necessity for the HFEA to be allowed to charge for licensing, even though some of the licensing fees, based on the number of people benefiting from and using the clinic, are very substantial indeed, in some cases running into the hundreds of thousands of pounds.
The amendment would remove the right of the authority to charge a fee for advice. Will the Minister explain what that advice might be? What, in fact, might the HFEA want to charge for? Surely advice should be freely available to allow those who are considering applying for a licence to have the best opportunity to submit all the relevant documents in the first place. That should be part of a consultation process free at the point of access with the HFEA.
From my reading of the clause, it would also enable the authority to charge a person considering treatment for providing gametes or embryos. In my view, this should be free, as the current process is costly, traumatic and time-consuming enough. There has to be an assumption that the HFEA will give free advice to clinics to enable them to meet the criteria, to get the licence and to ensure that they are safe. There is concern from within the clinic community that HFEA charges could amount to not insubstantial sums for carrying out roles that the authority should be fulfilling in the first place. I am referring to the additional information that is required for obtaining a licence, for renewing a licence, or for future discussions and advice on interim inspection reports.
4.45 pm
Will the Minister clarify what sort of categories of advice the HFEA will be able to charge for? Is it advice about confidentiality, consent or licensing? Might it also be advice to those donating embryos and gametes, because the last thing that we want to do is to deter people from wanting to be donors?
Robert Key (Salisbury) (Con): I support the amendment very strongly because it addresses the fundamental issue of whether it is right for some of the services in the national health service to be paid for by the patient. Any licence charge is inevitably passed on to patients—and in different ways. Quite a lot of it comes down in the end to postcoding. I object very strongly to the discrimination against fertility centres in the national health service. They find themselves faced with very high charges, as my hon. Friend the Member for Boston and Skegness said. As far as I can see, this measure is an extension of that, although perhaps the Minister will convince me that it is nothing to do with that, that patients will not suffer or lose a penny, and that the primary care trust will not be able to pass on any of the charges to patients.
My basic point is that there should be no discrimination against fertility treatment. Fertility treatment is not a luxury; it relates to a medical condition. The rich will continue to look after themselves. If we are not careful, we will see the national health service clobbering the poor—it is as stark as that. This is an issue of principle. My hon. Friend is seeking, in a far kinder way than me, to press the Minister to explain the measure, and I support him. I shall take some convincing that the amendment should be withdrawn, and I hope that it is not.
Dawn Primarolo: The intention behind the provision is not to implement the charging to which the hon. Members for Salisbury and for Boston and Skegness have referred. The clause provides for a discretion, not a duty. It is discretionary to charge a fee for advice provided under the clause when the advice requested from people to whom licences apply is greater—let me explain.
The provision is intended to allow the HFEA to recover costs that it has incurred in providing specialist advice. It was considered appropriate to make the power discretionary, which enables the HFEA to consider whether a charge is necessary. It is not about income generation. It is a discretionary levy that will be used only when appropriate, such as if a clinic wants to consider what systems it needs to put in place to comply with a European directive. It will be provided for within the national health service if we are required to move the entire service to comply with a particular European directive, or if a restructuring of the service is necessary. The amount of work generated for the HFEA by such a request could go way beyond the usual requests suggested by the hon. Members for Boston and Skegness and for Salisbury.
If the information provided by the HFEA goes beyond that by helping the structure of the business, it has the option to charge a fee. That power will be used sparingly because such a thing will occur only in rare circumstances, but none the less it will happen. The public purse would otherwise be under pressure and strain because of having to provide advice to private organisations on how to comply with requirements. That does not seem to be the correct way to proceed.
I absolutely understand the point made by the hon. Member for Salisbury. I imagine that he was thinking of clinics asking for information. We are talking specifically about them going beyond that and asking for much more detailed advice about compliance or structure.
Jeremy Wright (Rugby and Kenilworth) (Con): Of course we accept the Minister’s reassurances once again, albeit with the caveat that she will not always be the Minister. Will she answer this specific question? If I understand her correctly, she seems to be arguing that in the majority of cases in which information or advice is sought by organisations or individuals, the HFEA would not contemplate charging a fee, but that in exceptional cases, it might. Why does the clause not say that a fee is not to be charged save in exceptional circumstances?
Dawn Primarolo: The power would be a duty if it was required in all circumstances. It is a discretionary power regarding not information, but specific advice. If we intended the HFEA to charge for everything—information and advice—we would put a duty on it to do so. We are requiring it to charge, with discretion, if the demand goes beyond information. The authority will have to decide whether to make a charge.
Robert Key: The Minister has the enormous advantage of having been a Treasury Minister for many successful years. She will know that in the arguments that we had with the HFEA over the charging of primary care trusts or, more usually and more directly, fertility clinics, the authority said that it was bound by the instructions of the Treasury. That is about as discretionary as a local council charging council tax to its residents.
I am totally unconvinced by the Minister’s argument. She has been unable to give a guarantee that the charges will be discretionary. We all know of discretionary charges in almost every area of life, and I am not convinced that the charges will not be passed straight on to primary care trusts and fertility clinics—and ultimately to those seeking help.
Dawn Primarolo: I want to resolve this. I understand the hon. Gentleman’s fears, but this is discretion under specific circumstances. If he has a way forward, I would be happy to take a further intervention. When there is a request for substantial advice from the HFEA that would cause substantial cost and go beyond the information that it normally gives or the work that it would normally do, it has the discretion to decide whether or not it charges a fee. It need not definitely charge a fee, but it may do so, to ensure that the public purse is not unduly called upon. Has the hon. Gentleman a way of having that caveat but not removing the provision completely, which is what the amendment would do? The amendment would completely remove the HFEA’s ability to have the discretion to decide whether it wants to recoup its costs in exceptional circumstances when the cost is great.
Robert Key: Of course, the answer is to include the phrase “exceptional circumstances” somewhere and then to define them. Will the Minister also point to anywhere in the Bill that describes what the normal function of the regulatory authority is?
Dawn Primarolo: Given the advice and the information collected, the work that the HFEA has done predicated on the 1990 Act, and the hon. Gentleman’s expertise in this area, he knows full well that the HFEA will be regularly asked for information. The caveat that I am drawing here is about advice. I am loth to leave the HFEA exposed when there might be substantial claims on its resources through providing advice, but I absolutely agree with the hon. Gentleman that we are not sending a signal in the Bill or from the Committee that we would expect everything to be charged. This is a caveat that is additional to the provisions in place. Given that the Bill amends the 1990 Act, when it is silent, it means that the measure is in the 1990 Act.
I want to be open with the Committee, but I do not want to accept a complete removal of the proposition. I would ask the hon. Member for Boston and Skegness to reconsider his amendment and give us time to think about it. Regrettably, if he feels that he must press the amendment to a Division, I fear that I must ask my colleagues to resist it. It would be better to try and sort this out properly.
Mark Simmonds: I listened with great interest to the Minister’s response. She initiated her comments by using the word “discretion”. My hon. Friend the Member for Salisbury ably made the point that Governments have the discretion to raise taxes all the time. I am not suggesting that fees for advice from the HFEA are the equivalent of tax, but they could definitely have an impact on costs for someone wishing to receive treatment from one of the clinics, if an element of those fees was passed on.
If all this is about implementing EU directives, my hon. Friend the Member for Rugby and Kenilworth came up with exactly the right wording: “exceptional circumstances”. I would argue that implementing EU directives is probably an appropriate call on the taxpayer, rather than the individuals using clinics. The HFEA, since its inception, has survived perfectly adequately without having to charge for advice under existing structures. Also, there could be a major deterrent for those who are using the clinics in what is already sometimes an extremely costly exercise.
I am sorry to disappoint the Minister. I am grateful for her offer of looking at the point again, but I am not prepared to withdraw the amendment and I shall press it to a Division.
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 8.
Division No. 1]
Harris, Dr. Evan
Key, Robert
Penning, Mike
Pugh, Dr. John
Simmonds, Mark
Streeter, Mr. Gary
Wright, Jeremy
Clarke, rh Mr. Tom
Gibson, Dr. Ian
Jones, Helen
McCabe, Steve
McCafferty, Chris
Moffatt, Laura
Primarolo, rh Dawn
Turner, Dr. Desmond
Question accordingly negatived.
Clause 6 ordered to stand part of the Bill.

Clause 7

Duties in relation to carrying out its functions
Question proposed, That the clause stand part of the Bill.
5 pm
Mark Simmonds: Clause 7 strikes me as a curious measure. It states that the authority, meaning the HFEA, should carry out its duties
“effectively, efficiently and economically”,
but one would have thought that that is implicit for any Government authority. Does it mean that the HFEA has so far been ineffective, inefficient and uneconomic? What would be the impact on the HFEA if the clause was not included? The HFEA’s behaviour and performance should not be altered because it should operate that way whether or not the clause is included.
Dr. John Pugh (Southport) (LD): My question is on proposed new section 8ZA(2), which states:
“In carrying out its functions, the Authority must, so far as is relevant”—
I am not clear when it would not be relevant—
“have regard to the principles of best regulatory practice...including the principles under which regulatory activities should be transparent, accountable”
and so on. It is accepted that the HFEA and its delegated committees will make some big decisions, but it is not guaranteed to be without conflicts of interest, whether financial, as have been mentioned, or based on research—people may wish to encourage research in which they are involved or actively discourage research in which they are involved. In fact, such conflicts of interest, far from being hypothetical, are regarded as extremely likely by most members of the Committee who have spoken. There are also public funding issues.
I recognise that the HFEA has a strong lay element, but in any environment in which there are lay and professional people, the latter have a big impact on what the former decide and think. The HFEA has a strong ethics committee, but that is largely concerned with the treatment of its clients.
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