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The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the Government published proposals on 14 December to update the Human Fertilisation and Embryology Act. Our principal aim is to ensure that legitimate treatments and research continue to flourish within a system of regulation that promotes public confidence.
Lord Taverne: My Lords, the Government must be aware that the White Paper has caused a great deal of concern, as it does not seem to recognise that there is nothing new in the use of animal eggs and that human tissues and fusion products have long been used very profitably in medical research, as with xenograft models of cancer inserted into mice, for example. Would that be banned under the White Paper? There can be no question of chimera embryos being implanted in the womb; this is for research purposes only, to get round the severe scarcity of human embryos. Do the Government not realise that, if, tomorrow, the Human Fertilisation and Embryology Authority decides in response to the Governments White Paper that the three applications before it should be banned, that would gravely damage Britains reputation as a world leader in the field of stem cell research, which has attracted talent from all over the world, and endanger some very promising lines of research into serious disabilities that affect more than a million families in this country?
Lord Hunt of Kings Heath: My Lords, I cannot comment of course on the decision that has to be made by the HFEA. I very much accept the noble Lords proposition about the status of this country in the area of stem cell research. He will recall that in 2001 I took through the regulations that allowed that to happen. The success of the UKs approach has come from combining strong regulation with a development of regulation as science has advanced. We make it clear in the White Paper that we will not allow the creation of embryos by combining human, animal and genetic material as part of the current update, but we will put in the legislation to be brought forward a regulation-making power to allow for such creations in the future for research purposes, if it is so decided. That is consistent with the approach that has been taken for legislation in this area. We will bring forward a draft Bill for pre-legislative scrutiny, when all these matters can be debated.
Lord Walton of Detchant: My Lords, does the Minister agree that the cells produced by this method of nuclear transfer cannot be construed as embryos under the terms of the Human Fertilisation and Embryology Act, but that they are capable of producing a very successful output of stem cells for the treatment of many crippling human diseases? Such cells produced by tissue culture would be free of any significant component of animal mitochondrial DNA. At the same time, is it not right that the Government should do what they can to encourage the donation of spare human embryos in IVF programmes and, wherever possible and feasible, the donation of human ova for similar reasons?
Lord Hunt of Kings Heath: My Lords, these matters relating to egg donation are for the HFEA to consider. The noble Lord will know that the HFEA has made a recent decision in that regard. Our understanding is that the law is unclear about the regulation of human and animal embryos created by novel processes. That is partly why we have reviewed the current legislation and why we will bring forward a draft Bill for parliamentary scrutiny. We have to recognise that, on the one hand, as the noble Lord, Lord Walton, suggested, there is great potential in research areas and that, on the other, there is genuine public concern about some of these developments. We are attempting to maintain a balance. I am sure that parliamentary scrutiny will help.
Lord Winston: My Lords, the Government are surely to be congratulated on their willingness to allow stem cell research, but Britain is rapidly becoming uncompetitive. The Medline index clearly shows that the numbers of publications from this country are falling. Does the Minister not agree that this is an example of an area about which there is very little public disquiet? There has been no evidence of that public disquiet of which he spoke. It is very clear that there is no possibility that such eggs, treated in this way, could become monsters or embryos that might be used for any purpose other than research. Under those circumstances, would it not be scandalous for this work not to go on to help human health?
Lord Hunt of Kings Heath: My Lords, I hear what my noble friend says. He will know that I have been enormously committed over the years to encouraging the development of stem cell research in this country, as have the Government. We continue to encourage, and have put a lot more money into, research to enable that to happen. The UKs position is very strong.
There will be scrutiny of the draft Bill. We will take into account the views that my noble friend has expressed, but our strong regulatory framework and the ability to march forward with the science have been the essential ingredients for our success in this country.
Lord Alton of Liverpool: My Lords, in trying to strike the balance that the noble Lord has mentioned, will he take into account the views of Professor Austin Smith, of the University of Cambridge, who said as recently as 18 December in the Times that cloning research has limited potential for treating disease and that,
Is it not the case that since 1990, when your Lordships first authorised experiments on human embryos, more than 1 million human embryos have been destroyed or experimented upon without any diseases having been cured, and that the real breakthroughs are coming with adult stem cells, which carry no ethical hazards and raise none of the issues that chimeras, hybrids or the use of human embryonic stem cells do?
Lord Hunt of Kings Heath: My Lords, my answer is the same as I gave to the noble Lord in 2001: we should not rule out any area of research; it is surely too early to reach hard-and-fast conclusions. That is why we are committed to supporting stem cell research on all fronts.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, on behalf of my noble and learned friend, I beg to move that the House do now resolve itself into Committee on the Bill.
The noble Lord said: It is my privilege to start on a long road by introducing the first amendment to this
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I am concerned to ensure that the public interest stands at the forefront of the Bill. The Ministers brief may contain words to the effect that this is all unnecessary and goes without saying, but that is not the case. It is important that we do not succumb to political correctness or modern-day fashion by putting the consumer ahead of the public interest in its widest connotations. Protecting and promoting the public interest is a lawyers prime duty. It sometimes means that they are, as I said at Second Reading, in conflict with the consumer, the client for whom they are acting. Nevertheless, it is a lawyers duty to put the public interest first. I submit to noble Lords that that should be the first principle, ahead of consumer interest, in the Bill. I beg to move.
Lord Hunt of Wirral: I strongly agree. It is difficult to understand what has changed since the previous Lord Chancellor issued a consultation paper entitled In the Public Interest? I believe that he had it absolutely rightit is very much in the public interest that the reform of the legal profession should take place. But the noble Lord, Lord Thomas of Gresford, has quite rightly noticed that the terminology has changed. It has suddenly become of concern to the Government that the reform of the legal profession should be in the interest of consumers and no longer in the public interest.
I thank my noble friends who served with me on the Joint Select Committee. This matter came to our attention and, in our report published on 25 July, we stressed the importance of bringing back public. I pause for a moment to consider what that word means. It is much wider than the consumer interest. The consumer interest is importantit is part of the public interest, but it is of course the interest of those who have used, or who use, the services. There is a much wider concept here, which was rightly recognised by the previous Lord Chancellor, that any move towards reforming what has always been seen as an independent, impartial legal profession must be in the interest not just of those who use the service, but of the much wider public interest.
The Minister has already heard me say at Second Reading and previously that the definition of public covers what could be termed as being in the national interestthe interests of this country as a whole. Is it in the interest of this country that we should have an independent, impartial legal profession? Of course it is. The consumer wants it pretty cheap, and quite rightly so, but not necessarily high quality. Although one always tries to seek the advantage of having not only value for money but also high quality, quality perhaps does not rate as highly as the cost with some consumers. Of course many consumers, particularly those of the criminal legal system, are to be found in most of Her Majestys institutions. That we should be bringing forward reform in the interests of the criminals is not something which should be paramount in our minds.
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The public interest covers what is in the interest of UK plc. It is clearly in our interests that our legal profession should continue to be respected across the world. I have been lobbied by many senior Silks. It is the only time I have ever really come across themthey tend to be exceedingly expensive. I remember once having breakfast with a very senior Silk who afterwards charged me £2,500 for the privilege. I will not go into the detail of that case, but there are Silks who practise in other jurisdictions. There are lawyers, solicitors and barristers who practise across the worldnot only in Commonwealth countries and not only in those that accept the English system of common law, but on a much wider scale. It is therefore surely in the national interest that whatever bodies we establish under this Bill should be in the interest of UK plc.
It has also come to our attention that these words apply not only to the Legal Services Board, but will apply to the Office for Legal Complaints and to approved regulators. Therefore, we are dealing with a very wide concept. I warmly applaud the words of the noble Lord, Lord Thomas of Gresford. I took the opportunity to surf the internet just before this debate to try to work out a definition of public interest. Wikipedia, the free encyclopaedia, directed me to common well-being, which is an interesting concept. It also reminded me that public interest is often contrasted with private or individual interest, so one could say that it is very different from consumer, private or individual interest. It is much wider. Wikipedia repeats the words of many philosophers throughout the ages who stress that the public interest is a crucial concept in much political philosophy. Protection of minority rights is arguably part of the public interest. It is also a defence against certain lawsuits.
I was also just looking at the ruling on 11 October last year in a very important case by our Judicial Committee, upholding the vital principle of press freedom in the public interest. Therefore, the public interest is found not only in this amendment, but in other key locations. I could say much more on the subject, but it strikes me that the Minister has been listening carefully and nodding from time to time. Her body language is very acceptable to this House. Therefore, I will sit down and hope that she will respond positively.
Lord Campbell of Alloway: I agree with everything that was said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Hunt of Wirral. However, I have one reservation about Amendment No. 1, which relates to access to justice. Amendment No. 2 is preferred because, as was pointed out so clearly by my noble friend just now, the public interest qualifies the consumer interest. Having said that, the only justification for this Bill as amended is if it is in the public interest, which includes the interests of the client now referred to as the consumer.
The width of public interest, which comes within the remit of the board, is fantastic. Before it makes any of its administrative decisionsbe they on directions, public censure, financial penalties, interventions, cancellations, designation, policy statements, practising fees, regulatory conflicts or, indeed, the licensingit has to take into account the public interest. It is a very wide remit. The amendment is of crucial consequence because it stands as guardian over all the other amendments to the Bill. My noble friend Lady Butler-Slossshe was once my learned friendsaid on Second Reading that consumer interest, if contrary to the public interest, is subservient to it. That is recognised by the drafting of Amendment No. 2.
This is all very well, but there has been a fantastically wide delegation of powers to the board, which has been commented on by the Delegated Powers Committee. This raises the question of whether it should remain a matter of policy without some form of judicial supervision. It is a crucial consequence that the public should have confidence in the way that this proposed regime works. I suggest that they cannot have confidence in these circumstances, which are wholly exceptional, if there is no judicial control by way of judicial review.
There are two aspects of public interest touched upon by my noble friend Lord Hunt. The first is the interest of the client to have independent and quality advice, which is in the public interest, too. The second is the standing of our legal professional as seen by other countries in the world.
It seems that there is no argument of substance between the two sides today, because the noble Baroness, Lady Ashton of Upholland, was good enough to write to me saying there was no need to be concerned about the public interest. She said that the Government shared our interest and had put in references to the public interest in Clauses 3(3)(c), 27(3)(c) and 113(3)(b), provisions dealing respectively with the Office for Legal Complaints and a couple of other bodies. They have put those words in to control the activities of the three most important bodies created by this Bill.
Once you concede that, there is really no basis in principle on which you can object to our proposal that the Bill should proclaim on its front the importance attached to the public interestand that it not be a matter of scurrying through a lot of clauses and getting as far as Clause 113, if anybody goes that far. We should put it right up on the front of the Bill, just like the White Paper that was put out earlier about the public interest. It fits very well beneath the reference to the rule of law but ahead of that to consumers. Without abandoning my colleagues on Amendment No. 2, I prefer the notion of the noble Lord, Lord Thomas of Gresford, that this should go in as a separate provision, coming in as Clause 1(1)(c). That is the place it obviously belongs and it should be put in there. I am grateful to the noble Baroness for having written to me, and I hope we shall see further actions reflecting the body language witnessed earlier.
The other point to make is that the noble Lord, Lord Hunt of Wirral, was the chairman of the Joint Committee of the two Houses that examined the Bill, to the best of our ability. Part of our second recommendation was that these words should be introduced into Clause 1. I thought that that was right when we made the recommendation, and I still think that it is right.
Lord Lloyd of Berwick: If the noble Lord, Lord Hunt, is correct about the Ministers body language, I wish to say no more at all. But whether that be so or not, it seems clear that there must be a reference to public interest in Clause 1, especially as there is a specific reference to consumer interest. Of the two amendments, like the noble Lord, Lord Neill, I prefer Amendment No. 1.
Lord Graham of Edmonton: As a person who does not claim to be at all familiar with the law, the legal professions or legal services, I am a little puzzled by the need to distinguish the public interest and the interest of consumers. I do not intend to make heavy weather of that. I have listened carefully from the beginning to the arguments that have been advanced. As a consumer of legal services and many other things, I welcome the reference to the interest of the consumer in a Bill of this kind, while not remotely arguing that one interest should take preference over another.
The noble Lord, Lord Hunt, said that the consumer interest may be best defined as people wanting to find the cheapest services that they can, which may not always be services of quality. That may be so in respect of certain consumers of certain services, but we should remember the phrase caveat emptorlet the buyer beware. Certainly the cost of services, legal or otherwise, needs to be taken very seriously. So I shall listen carefully to the Ministers arguments as to whether the amendment is appropriate and necessary.
I have no objection as a consumer to placing the interests of the public above that of consumers provided that the interests of the consumer are treated equally fairly and on the same line as the public interest. After all, we are at a stage and an age when the provision of legal services is always subject to very close scrutiny. Rightly, the legal profession, in its many forms, has its own monitoring and scrutiny arrangements. We shall come later to how those services can be better used to protect the interests of the public and the consumer.
I cannot see the Ministers body language from the back, but I have listened carefully and I hope that we do not make very heavy weather of whether the interests of the consumer or the public are paramount. As a member of the public, I fully subscribe to all that has been said about the interests of the public but I hope that I have made as strong a case as I can that the interests of the consumer are entitled to be considered equally.
Baroness Carnegy of Lour: I hope that we will make very heavy weather of this. I look forward to the Ministers response, but in telling us her view could
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