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Lord Norton of Louth: The noble Baroness will not be surprised to hear that the answer to that question is no. I commend her on her reading skills; she repeated her earlier points quite clearly. But she did not address the nub of my point.
The noble Baroness did not address the fact that she is saying: we are quite clear as to the status; it is a political declaration; none the less other states do not agree and therefore we shall continue the discussion. Presumably that means that what happens to the charter is to be open to discussion; that is the whole point of the debate. That is not foreclosing it. The Government are going along with, or giving in to, those who did not get their way at Nice and who want to push the issue further. In other words, the matter is still up for discussion. We still do not know what the outcome will be. In that sense we are none the wiser.
In that respect there has been an absence of leadership. The same applies in relation to the noble Baroness's answer to my other point: why was this drawn up without any consideration as to its status or legal effect? The response was that that was what the others decided. Why let them decide? Why let them dictate the situation.
Baroness Symons of Vernham Dean: I did not say that that was what the others decided. I said that that was what the EU decided. I also said that it was a matter of making the charter with more fundamental rights more visible to the EU citizens. There was a
purpose in it. Making those fundamental rights more visible to EU citizens is surely a purpose that was fulfilled.
Lord Norton of Louth: The purpose was simply one of transparency. We now have the charter. Why are we debating this therefore in the context of the future of Europe? That should have been that. It was transparency. Of course, in practice, as the report from the European Union Committee made clear, it is not as simple as that because there is the relationship to the European Convention on Human Rights. The situation therefore is more complex than the noble Baroness indicates.
So the noble Baroness did not get to the nub of my point. I am reluctant to pursue this until she does. I am conscious of the hour and even more conscious that I have to get back to Hull this evening because I have students to teach. So we may have to return to this matter, by which time I hope the noble Baroness's answer may have gone up from a 2.2 to a 2.1. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed: Bill reported without amendment.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No.2) Order 2001
9.23 p.m.
Lord Rooker : My Lords, I beg to move.
Moved, That the draft order laid before the House on 19th November be approved [10th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.
Terrorism Act 2000 (Enforcement of External Orders) Order 2001
Lord Rooker: My Lords, I beg to move.
Moved, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.
Human Reproductive Cloning Bill [HL]
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.]
Lord Brennan moved Amendment No. 1:
- Page 1, line 3, at end insert—
The noble Lord said: This Bill has a single purpose; that is, to,
The Long Title and subsection (1) of Clause 1 refer to the,
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 he 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 Xattempt". That is common sense. But here we are dealing with the act of placing the unfertilised embryo in a woman, or the attempt to
If any ordinary observer asked of this Chamber: XDoes this Bill effectively prevent anything to do with human reproductive cloning?", a competent lawyer would say, XIt 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
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.
X( ) 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."
XProhibit the placing in a woman of a human embryo which has been created otherwise than by fertilisation".
This amendment seeks to fortify that purpose.
Xplacing 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.
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