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Lord Hunt of Kings Heath: That is certainly the definition given in the 1990 Act. We do not want in the current Bill a wording defining Xfertilisation" which is different from that which appears in the 1990 Act. The substantive point is that if the embryo is created by
fertilisation, that act is covered by the 1990 Act and the HFEA is fully responsible for regulating and licensing, whereas we are attempting in this Bill to cover the situation where embryos are being implanted which have not been created by fertilisation. It is on those definitions that the Bill rests.
Lord Brennan: It is important not to give in to the scientific brilliance and oratorical charm of my noble friend Lord Winston and to ensure that we apply common sense in construing a criminal statute. If a judge is directing a jury with a defendant facing a 10-year term of imprisonment if convicted, and a jury says to the judge by way of question, XBefore we consider our verdict, please tell us what 'fertilisation' means in this context?", the judge cannot reply, XThat is a very interesting question which is scientifically very complicated. Do the best you can"; he cannot say, XLook at the 1990 Act", because the Bill does not refer to the 1990 Act; and he cannot say XGo home tonight, turn on the television and see if Lord Winston is covering it on one of his programmes". It is simply unrealistic.
My desire is not to confuse or to cause semantic difficulty but to enable a jury to perform its task, upon proper direction, when deciding a serious criminal charge. I fear that my concern has not been met. I propose to withdraw the amendment, but I invite my noble friend the Minister—to whom I am grateful for his reply—further to consider how a judge directs a jury as to the meaning of Xfertilisation".
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 6:
- Page 1, line 10, at end insert—
The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendment No. 7. Both amendments are self-explanatory; they seek to clarify what Xplacing" means. The Government have not attempted to do so.
If the criminal act is the placing of an embryo created by CNR into a woman, there will be more than one person involved in the process. A number of people along the line will assist knowingly and positively in that process. I was about to say Xwilfully" but, nevertheless, they will be positively involved both in collaborating with the surgical process of placing an embryo in a woman and, as indicated in Amendment No. 7, in collaborating with any preparatory work. This process does not just happen; a great deal of work is undertaken in the human reproductive cloning process prior to the implantation, or Xplacing", which is the word used in the Bill, of an embryo into a woman. I added at the tail end of my Amendment No. 7 that Xplacing" should not include the donation of genetic material, again thinking along the lines of the noble Lord, Lord Alton. There will be occasions when there will be wilful collaboration, or positive collaboration, and there will be other times when it will be a matter of an innocent involvement on the part of the woman. I know the arguments both for and
Lord Alton of Liverpool: I support the points made by the noble Baroness, Lady Blatch. Perhaps I may ask the Minister specifically about a report that appeared in yesterday's Sunday Times, under the headline,
All of us are concerned about a gap that is opening up in the Bill. Although it will be an offence to place in the womb of a woman a cloned human embryo, it will still not be an offence to set about the creation of such a clone. If, subsequently, that were to be placed in an artificial incubator or in the womb of an animal, there is nothing in the Bill to prevent that from happening. The concern is with what takes place in the initial stages and with the collaboration that occurs. I hope that in his reply the Minister will say something about the penalties that he would expect to be imposed on those who participated in such collaborative acts.
Lord Hunt of Kings Heath: The amendments seek to include collaboration in the process of placing an embryo in a woman. They introduce the term Xcollaboration" into the criminal law in this area.
My advice is that the criminal law already covers fully the participation in a criminal offence of third parties, so that anyone who knowingly and actively helps a person to conduct an offence under the terms of the Bill may be subject to a charge of aiding and abetting, counselling, procuring or conspiring.
These are well-established legal procedures. In addition, the amendment refers to the Xsurgical process" of placing an embryo in a woman when that might not include such a process and, if it did, it is not clear what would be included; nor does it state what might be included in preparatory work. For instance, would that include a person who donates an egg for research into which the genetic material is to be transferred?
In essence, the amendment could introduce considerable uncertainty. If it were accepted, would other procedures, such as aiding and abetting, be excluded? XCollaboration" as a concept overlaps with many of these other areas of criminal law. The amendment would serve only to make the law unclear as it relates to secondary participants.
As regards the word Xplacing", it would surely be given its ordinary and natural meaning. Returning to the issue that we debated in relation to the amendment of my noble friend Lord Brennan, if one tries to define this area overmuch, one runs into problems of excluding possible loopholes in this legislation in the future.
The noble Lord, Lord Alton, asked what action would occur in the event of a UK resident collaborating with the Italian doctor—if doctor he is. Such collaboration would be dealt with under the terms of aiding and abetting, counselling and procuring.
If the Italian person who has been named was involved in collaborating with a British clinic, the HFEA would have a certain competence. When considering licences, it can take account under the Act of the character of the licence holder. The authority has limited powers in respect of non-licensable activities in a licensed clinic. There is some comfort, in that a person conducting affairs from a licensed clinic might jeopardise their licence if they were behaving in the way suggested by the noble Lord.
Lord Alton of Liverpool: I am grateful to the Minister. That sends the right signal from our debate. Will he make it abundantly clear that he would expect the HFEA to act in that way for any such process that took place in a UK clinic, even if it did not culminate in the placing of a cloned human embryo in a woman, but, as the noble Baroness, Lady Blatch, suggested earlier, it resulted in the sale or export of a cloned human embryo? Will he also deal with a point that I raised on Second Reading concerning the Immigration Act 1971 and confirm that it would have been possible, in the public interest, to have excluded Severino Antinori from entering the United Kingdom in any event, even without this legislation?
Lord Hunt of Kings Heath: That is open to contention, because without the Bill he would not be committing any offence if he came to this country. The judgment of 15th November has concluded that there is no regulation in that area. As he comes from another EU country, there might be great difficulties in implementing such a ban. The Home Secretary's decision would certainly be open to judicial review.
The noble Lord's point about the clinic has to be a matter for the HFEA rather than for a Minister. In the circumstances that I have mentioned, the HFEA clearly has certain powers that go outside its regulation of a licensed clinic. It provides some comfort that a licensed clinic in this country would have a great deal of inhibition about engaging with the Italian or with anyone else who wished to do the same. I have not read the Sunday Times article that the noble Lord mentioned, but the person whom he mentioned made the point that they would wish to do that only if they felt that it was being done in a proper, appropriate and regulated way.
Baroness Blatch: I am baffled by the Minister's explanation. I shall press him on one or two points.
If the Minister is saying that the process, the counselling, the aiding, the abetting and anybody who has anything to do with the process from the commissioning of the project right up to the placing is included—that is what he appears to have just said—I shall be extremely happy and I shall regard my amendments as otiose.
Secondly, it would seem that the noble Lord has invalidated the need for the Bill. If my reading of what he has just said in answer to the noble Lord, Lord Alton, is correct, who then is culpable? As I read the Bill, the person who places the embryo in the womb of a woman is the person guilty of the crime. That is not what the noble Lord has just said. He has said that the people who aid, abet and counsel—and there was a fourth word used—those also party to and collaboratively involved, would also be culpable. Then who is guilty? Is it corporate guilt? Is it a number of individuals who are guilty?
I am very happy with what the noble Lord has said in his response to this amendment, but I am deeply suspicious of what has been said and I would welcome its repetition.
Lord Hunt of Kings Heath: I am sorry that the noble Baroness is deeply suspicious. I understand what the noble Baroness seeks to do. It seems to me that she is seeking to ensure that those people who have assisted people to offend against the terms of this Bill should be caught. It is my understanding that, under the criminal law, people who aid, abet, counsel or procure in the context of this Bill, which then leads on to a criminal act, would be caught by those circumstances.
The second point raised by the noble Baroness is in relation to my comments to the noble Lord, Lord Alton. This is a rather different kettle of fish. It relates to British clinics which might collaborate. The example he used was someone coming from abroad who wished to engage in these activities. To a certain extent, this comes within the regulatory framework under which the HFEA operates. Under the Act the HFEA, when considering licences, can take account of the character of the licence-holder. The authority also has limited powers in respect of non-licensable activities in a licensed clinic. Therefore, in the
X( ) In this Act Xplacing" includes collaboration in the surgical process of placing an embryo in a woman."
XBritish expert may join bid to clone humans".
The report states:
XA leading British infertility specialist is in talks with Severino Antinori, the Italian doctor, to help to set up a project to make human clones.
Gedis Grudzinskas, professor of obstetrics and gynaecology at London University and director of the Bridge Clinic, a private IVF centre, said he had been contacted by Antinori".
Will the Minister place it on record that, were such collaboration to occur, he would expect the full force of British law to be used against collaborators who take part in an act which—to refer back to a point made earlier by the noble Lord, Lord Brennan—could simply be the issue of process rather than culmination?
10.30 p.m.
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