Proposal for a Draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 Contents

Conclusions and recommendations


1.While the Committee welcomes the Government’s decision to use the remedial order process in this case, in the report we raise a number of significant concerns about the Government’s drafting approach. We recommend that the proposals are amended to address these drafting concerns and that the Government then lay that draft order before both Houses. (Paragraph 8)

The Issue that the proposed draft Order addresses

2.The Committee welcomes the Government’s action in proposing the draft Order to remedy the incompatibility of the Human Fertilisation and Embryology Act with the Convention rights to private and family life and to non-discrimination and to make the necessary consequential amendments that follow from those changes. (Paragraph 12)

Required information and effective responses to requests for information

3.The Committee considers that the procedural requirements of the HRA have been met and the Government’s reasons for proceeding by way of remedial order rather than by Bill are clearly capable of being sufficiently “compelling reasons” for the purposes of section 10(2) of the Human Rights Act 1998. Further, remedying the incompatibility by way of a non-urgent order, rather than an urgent order, strikes a reasonable balance between the competing considerations of the need to avoid undue delay before remedying the incompatibility and the need to afford a proper opportunity for parliamentary scrutiny. Even so, we regret that the Government did not set out its reasons for using the non-urgent procedure. (Paragraph 29)

4.We recommend that in its response to the representations made, the Government clarifies its reasoning for proceeding by way of non-urgent procedure, and addresses the points we make in this Report. (Paragraph 30)

Subsection (2)(b): Vires & the situation of those whose partner is not willing to take part in the application

5.The Committee recommends that the Minister and the Department reconsider the drafting of section 54A(2). Were this drafting to remain, the Committee would wish to draw the special attention of both Houses to the subsection (2) of the proposed section 54A of the HFEA on the grounds that it makes an unexpected use of the enabling power. Moreover, we would draw the attention of both Houses to a doubt as to whether the Order is intra vires. This is because the vires in section 10 of the HRA are for the Minister “to make such amendments to the legislation as he considers necessary to remove the incompatibility”; this Order does not adequately remove the incompatibility with convention rights because it fails to address the human rights of a biological gamete-contributor who also wants to assert the human rights associated with building an enduring family relationship, without requiring their partner to assert a non-existent quasi-biological relationship with a child. (Paragraph 43)

Subsection (3)(b): Requirement to prove a separation is permanent

6.The Committee recommends that the Government reconsider the drafting of section 54A(3) to remove the requirement for a person to prove to the Courts that their separation is likely to be permanent. Were this drafting to remain, the Committee would want to bring the special attention of the two Houses to subsection (3)(b) of the proposed section 54A of the HFEA on the grounds that there is a doubt whether it is intra vires, because it goes beyond the minimum amendments necessary to remove the incompatibility, by imposing a condition which may be difficult to satisfy and is not related to any obvious policy justification. (Paragraph 46)

Defective Drafting concerns relating to the Schedule

7.The Committee notes the serious drafting defect that has been corrected in the correction slip that the Department issued and invites the Department to consider and rectify further drafting defects in the proposed Order (as identified in Chapter 4 of this Report). The Committee welcomes the recognition by the Department of these drafting errors in its information note of 8 February 2018, and welcomes the Department’s commitment to consider the draft further and make amendments as necessary. (Paragraph 56)

8.We recommend that the Government reconsider the drafting of the Order further, in light of the potential drafting defects identified in Chapter 4 of this Report and make amendments to the draft, or clarify its position, as necessary. (Paragraph 57)

Timing of remedying declarations of incompatibility

9.We are disappointed that the Government has not brought forward proposals to remedy outstanding incompatibilities with Convention rights more promptly and urge it do so as swiftly as possible. (Paragraph 60)

The use of the remedial power on post-1998 Acts

10.We consider that remedial orders can amend post-1998 legislation and that this was indeed the intention of the HRA. (Paragraph 61)

The six month deadline

11.The Committee assumes that the Government intends the Courts to take the same approach to “six months” in section 54A as in section 54 HFEA, to ensure that the best interests of the child are borne in mind also when considering these technical formalistic requirements. In the interests of clarity, it might be helpful for the Government to clarify this intention. (Paragraph 64)

Consent requirements

12.The Department should clarify whether the relevant consenting or making bodies have been consulted on the consequential amendments made in Schedule 2 to subordinate legislation (which would ordinarily have consent requirements or be made by non-Ministerial bodies). (Paragraph 68)

1 March 2018