Dawn
Primarolo: The hon. Gentleman started his contribution on
the amendment wanting to cover scientists who inadvertently went
outside the licences. It was not that they set about going outside the
licence. He referred to that just a minute ago as the wonder of
science, and I have told him that that is covered. Is he now saying
that he wants them to have the absolute right to do certain research
outside the licence? That is a slightly different
proposition.
Dr.
Harris: I do not think that it is a different proposition.
If it is likely that an embryo will be created, either as the intention
of research or as a foreseeable consequence, clearly they should get a
licence, and I think that that now applies to eggs in culture. An
alternative, to avoid the need to get a licence, would be for there to
be a clear defence to cover those circumstances in which, in full
knowledge of the law, research artefacts that are not the purpose of
the study, are not being described and will not last long, might
emerge. That would make the whole question of investigation and
prosecution much less likely. That would actually add an extra
safeguard with regard to the decision to prosecute, because prosecutors
will not prosecute if there is a defence that could be prevailed upon.
So that would give researchers more confidence that they are not going
outside their licence. It would be wrong for them to go outside their
licence, and that is not what I am saying. It would be something that
is not obviously licensable and could be done without a licence because
it has nothing to do with embryos, but if something that could be
described as an embryo in this wide definition is produced as a
research artefact, they will be reassured and not scared off the idea
of doing the research.
I do not
think that it is satisfactory to rely on the DPP discretion, although I
understand what the Minister says about that, just as it is not
satisfactory to rely on an Attorney-General’s discretion,
although it is better than nothing. Researchers will have to get a
licence. I do not think that scientists will run the risk of not having
one and having complaints made against them. However, that is for them
to judge.
The
Government have made their position clear on the question of eggs in
culture. I repeat that there is a further issue about stem cells, but
that probably needs greater reflection. I was not planning to put the
matter to a vote, so I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 29
ordered to stand part of the
Bill.
Clause
30Regulations
under the 1990
Act
Dawn
Primarolo: I beg to move amendment No. 55, in
clause 30, page 34, line 14, leave
out ‘4A(5)(e) or (10)’ and insert ‘4A(4A) or
(10)’.
The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 56 and
57.
Dawn
Primarolo: I shall make some brief
remarks. 4.20
pm Sitting
suspended for a Division in the
House. 4.35pm On
resuming—
Dawn
Primarolo: I said that I would make some brief remarks,
but I had not realised how brief they would
be. The
definition of a human admixed embryo was amended during Committee of
the whole House to include a catch-all provision. That captures all
embryos containing both human and animal DNA in which the animal DNA
does not predominate. The amendment was tabled following extensive
discussions on definitions during the passage of the Bill through
another place. The amendment also removed the power to extend the
definitions of human admixed embryos through secondary legislation, as
it was no longer required following the introduction of the new
catch-all definition. Those amendments were accepted by the
House.
In addition,
an amendment was passed to insert a new regulation-making power to
specify circumstances in which the keeping or use of human admixed
embryos would be prohibited. The amendments tabled in this group are
consequential to those tabled during the Committee of the whole House.
They take out references to the regulation-making power to extend the
list of human admixed embryos from clauses 30 and 31, which deal with
the exercise of regulation-making powers under the Bill and the power
to make consequential provisions in certain cases
respectively.
The
amendments also insert a reference to the new power into clause 30 to
ensure that any regulations under the provision would be subject to
debate in both Houses—the affirmative procedure. In that sense,
they follow directly on from the decisions made in Committee of the
whole House. The amendments extend no further principles in the Bill,
but they tidy up the legislation and remove powers that are no longer
required. Mark
Simmonds (Boston and Skegness) (Con): I shall ask a couple
of brief questions to make sure that I understand the changes that the
Minister is proposing in the Government amendments. Do the
consequential amendments mean that the exercise of every
regulation-making power in the Bill has to be ratified by an
affirmative resolution of Parliament, or are there different categories
of regulation? It is not necessary to provide the information
now—the Minister can give it in writing—but it would be
helpful for the Committee to understand
which regulation-making powers in the Bill have to be resolved by
Parliament through affirmative powers and which do not.
I have a
specific question about amendment No. 57. As the Minister has just
explained, I understand that the removal of the term human admixed
embryo—leaving out lines 34 and 35—removes the
regulation-making power to change the definition of human admixed
embryos, but how does that relate to the regulation-making power under
section 4A(10) and amend section 4A(5) of the 1990 Act, which relate to
human admixed embryos? I understood that that meant that the Government
could change the definition of a human admixed embryo. Or does the
regulation-making power in new section 45A(2)(b), inserted by clause
31, override sections 4A(10) and section
4A(5)?
Dawn
Primarolo: A list of the categories are subject to
affirmative resolution under the Bill and, rather than list them all
into the record, I am happy to point them out in correspondence with
the hon. Gentleman and other members of the Committee, for ease of
reference in future debates. As for the changes that are being made,
the decision taken on the Floor of the House to have a catch-all
provision removed the necessity for regulations on definitions of
admix, so we are removing it from the Bill. The Government have the
power to amend the existing definitions, but they will no longer have
the power to add new categories to those definitions. The amendments
would remove the power from the Bill because it is not required any
more. Changing the existing definitions, if that proved necessary,
would be subject to affirmative
procedure. The
cross-referencing is different because we made the changes in Committee
of the whole House, and we are now tidying up the Bill. It is as though
we have been in Committee all the time and are simply amending the Bill
in two locations. I hope that I have made matters clear. As I said, the
list is long and, rather than delay our proceedings by reading it into
the record, I shall circulate it to all members of the Committee. It
will not take a
moment. Amendment
agreed
to.
Dr.
Harris: I beg to move amendment No. 174, in
clause 30, page 34, line 14, at
end insert ‘section 20A; section
20B;’. Last
Thursday, we debated clause 21, which inserted new sections 20A and 20B
in the 1990 Act. It resulted in agreement that those regulation-making
powers should be subject to the affirmative procedure, and I asked
whether they were. The Minister agreed that they should be, but it
turned out that they were not. To assist the Committee, I have tabled
an amendment that would make them subject to the affirmative procedure.
I am not sure that it does the job, but it would be one less thing to
cover when we discuss the Bill on Report. That is why I tabled the
amendment.
Dawn
Primarolo: The hon. Gentleman spoke to me during the break
and said that, in the light of events, he would not speak to his
amendment. However, I suggested that he move it formally, because he
should be given acknowledgement for trying to catch up with the
Government’s position. It is true that we debated the
appeals procedure and whether or not the regulations would be subject to
the affirmative or the negative procedure. I clearly said to the
Committee that they should be subject to the affirmative
procedure. I
thought that I made a joke, but the hon. Gentleman did not think so.
However, I hope that he will allow me to make it once more. The hon.
Gentleman is improving his skills as a parliamentary draftsman. He is
nearly there—he is doing fantastically well. I have never been
able to do as well in my time in Parliament. However, he has not quite
made it on this occasion. I would have been willing to accept the
amendment if it had been drafted correctly, but I will need to table
another on Report to put matters right. However, I will be more than
happy for the hon. Gentleman to add his name to it. The amendment will
be tabled. The regulations are currently subject to the negative
procedure, but we will take steps to make them subject to the
affirmative procedure. I know that the hon. Gentleman will not press
his amendment to a vote because he knows that it does not quite work,
but it establishes the
principle. 4.45
pm
Dr.
Harris: I am grateful to the Minister for explaining that.
It is back to the drawing board for me and my proposed new career. It
is sometimes the habit of Opposition MPs to consult the Public Bill
Office and then blame them. I cannot do that in this case. The
amendment was my own poor work, and I look forward to seeing the
Government’s proper amendment in due course. I beg to ask leave
to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendment
made: No. 56, in clause 30, page 34, line 21,
leave out ‘, 3(5)’.—[Dawn
Primarolo.] Clause
30, as amended, ordered to stand part of the
Bill.
Clause
31Power
to make consequential
provision Amendment
made: No. 57, in
clause 31, page 34, leave out lines 34 and
35.—[Dawn
Primarolo.] Clause
31, as amended, ordered to stand part of the
Bill.
Clause
32Orders
under the 1990
act Question
proposed, That the clause stand part of the
Bill.
Mark
Simmonds: I wonder whether the Minister can explain the
difference between regulation, as set out in clause 30, consequential
provision, as set out in clause 31, and orders, as set out
in clause
32.
Dawn
Primarolo: Will the hon. Gentleman repeat the
question?
Mark
Simmonds: Of course. Clause 32 refers to the
Government’s ability to make orders, yet clause 30 refers to
regulations, clause 31 to consequential provision, and clause 32 to
orders. Is there a difference between
regulation, consequential provision and orders? If there is, what is it?
If they are the same, why has different terminology been used in three
consecutive
clauses?
Dawn
Primarolo: Clause 30 deals with the regulations made under
powers introduced by the Bill that are exercised by the
authority—codes and so on. Clause 32 refers to the procedures of
this House—whether matters are subject to the affirmative or the
negative procedure. There is not a huge difference in practice, but
there tends to be a consequential relationship between regulations and
orders and the procedures under which they go through the House. One
may ask why that is the case, and the answer is that the House has
always done it in that way, and there is parliamentary
precedent. Question
put and agreed to.
Clause 32
ordered to stand part of the
Bill.
Clause
33Meaning
of
“Mother” Question
proposed, That the clause stand part of the
Bill.
Mark
Simmonds: Clause 33 defines the meaning of
“mother”. It
states: “The
woman who is carrying...a child as a result of the placing in her
of an embryo or of sperm and eggs, and no other woman, is to be treated
as the mother of the
child.” That
definition dates back to the 1990 Act. I want to raise at this point,
under a stand part debate on this clause, surrogacy arrangements
affecting the mother and the definition of a mother. There are some
complex and difficult issues that relate to the mother in surrogacy
arrangements, which I do not think will be discussed in relation to any
other part of the Bill.
Surrogacy
arrangements are recognised in British law as long as no payment is
made and only reasonable expenses are reimbursed. In the UK, surrogacy
arrangements are not a binding agreement on either party; there is very
little that the intended parents can do to secure their position prior
to birth, even in gestational surrogacy—where the baby is
genetically related to both intended parents and not to the
surrogate. Under
the 1990 Act, if a child is being carried by a woman as a result of
being artificially inseminated or has had an embryo introduced into
her, she is to be treated as the mother for all purposes even if she is
not genetically related to the child, and her husband will be treated
as the father unless it is shown that he did not consent to the
treatment. That parental consent and status can be lost only through a
parental order or an adoption, and, I understand, that that is retained
in clause 35, to which the hon. Member for Oxford, West and Abingdon
has tabled an amendment. In the United Kingdom, parents who wish to use
surrogate mothers then have to adopt the child or apply for a parental
order, which involves a great deal of state intervention. Parents can
be refused adoption orders even though the child is their genetic
offspring. That is not the case if the
surrogate is not married, as the genetic father can treat the child as
his legitimate offspring and apply for a parental order much
faster. When
these issues were debated in another place the Minister there promised
that the Government would give those anomalies further consideration.
Can the Minister state for the record today where those considerations
have got
to? I
shall put on the record two or three further complexities in this
already very difficult area. There is an argument that a single
commissioning genetic parent—the women who has had a child
conceived from her egg and the single father—are discriminated
against under the new provision. The law elsewhere in the world is not
the same as it is in the UK, which adds complexity. For example, in the
United States of America the legal parents of the offspring are the
commissioning parents, not the parent who bore the child. Therefore, a
child born by commissioning parents in the United States could be
parentless and stateless. That may be considered under other pieces of
legislation. The British Nationality (Proof of Paternity) Regulations
2006 may be
illegal. It
will be helpful if the Minister could put the Government’s
position on the record, especially in the light of the significant
immigration into the UK from the European Union since the EU accession
countries joined in 2004. Indeed, under EU law there
is—correctly—more leeway for individual states to make
their own appropriate legislation and regulations in this area of law,
because it is so sensitive. There is therefore no consistency across
the European Union.
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