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15 Jan 2008 : Column 1179

Lord Walton of Detchant: My Lords, is the Minister aware that your Lordships’ Select Committee on Medical Ethics, which I was privileged to chair, reported in 1993 and strongly recommended amendment of the law in this particular area? It did so because 23 cases had been reported to us in which a family member had deliberately ended the life of a loved one, and since the act was deliberate, the Crown Prosecution Service thought that this demanded a life sentence or a charge of murder. In every case but one, the charge was amended either to manslaughter or to attempted murder because the Crown Prosecution Service knew that, with a mandatory life sentence, no jury would be likely to convict. It is not the case, therefore, that on that occasion the law was being manipulated, and is it not time for a change?

Lord Hunt of Kings Heath: My Lords, the noble Lord makes a very important point. It is one of a number of matters that fall to be discussed and debated within the context of the Law Commission’s review. As I have said, the Government have decided to take a step-by-step approach. I have already indicated the areas that we will look at first, but we will come back at the end of that process to some of the more general important issues that noble Lords are raising.

Lord Elystan-Morgan: My Lords, does the Minister recollect that the report of the very distinguished commission described the law of homicide as “a rickety structure” that was standing on uncertain foundations, and that recasting the law of homicide to first degree murder, second degree murder and manslaughter would accord with the overwhelming majority of informed opinion in England and Wales, as well as with the systems of countries whose track record in the administration of justice is meritorious?

Lord Hunt of Kings Heath: My Lords, the noble Lord makes a very important point. I confirm that the Law Commission described the current law governing homicide as “a rickety structure” and made it clear that some of the rules have remained unaltered since the 17th century. That is why we take the matter seriously. The fact that we are taking this incremental approach does not undermine the importance of the overall thrust of the Law Commission report or the fact that the Government are very much prepared to engage with noble Lords in discussing the wider implications.

Lord Henley: My Lords, the Minister has repeated on behalf of the Government their commitment to maintain the mandatory life sentence, for which I thank him. On the original Question, which was about the timing, does the Minister not accept that it is now 14 months since we had this report, during which time the Government have only partially responded by offering consultation on one small aspect of it? Do they not think that they could proceed with slightly greater speed and produce consultation on more aspects of the original report?

Lord Hunt of Kings Heath: My Lords, I have discovered since taking on this particular responsibility that most noble Lords think that the Government are too ready

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to bring criminal justice legislation to your Lordships’ House. I would have thought that the law on homicide, which is such a serious offence, warrants very careful preparation, time and consideration. That is why we have decided to take this step-by-step approach.

Lord Bramall: My Lords, following on from what my noble and learned friend Lord Lloyd said, does the Minister not agree that it is entirely wrong that, as things stand, someone who in the line of duty kills another person because of a perceived split-second error of judgment can, if found guilty, be guilty only of murder, with an inevitable mandatory life sentence?

Lord Hunt of Kings Heath: My Lords, the noble and gallant Lord raises a very important matter. The Law Commission argued that the law should make provision for those whose killings are judged to be an over-reaction in self-defence, and that a partial defence should be available in such cases to reduce the charge from murder to manslaughter. The commission proposed to address this by widening the provocation defence to include cases where the defendant killed in response to a fear of serious violence. That is one of the matters that we will be looking at very carefully.

Mental Health: Community Orders

2.59 pm

Baroness Neuberger: asked Her Majesty’s Government:

Baroness Royall of Blaisdon: My Lords, my right honourable friend the Secretary of State for Justice has asked my noble friend Lord Bradley to review all the ways by which offenders with mental health problems are diverted from prison to other services. He will look at barriers to such diversion and has assured me that the mental health treatment element of the community orders will be included in his review, which he hopes to complete this summer.

Baroness Neuberger: My Lords, I thank the Minister for her reply but, given that our prisons appear to be stuffed full of people with mental health problems, can she tell us what, in the very short term before the review comes out, the Government are planning to do to discourage the use of prison in favour of some kind of community order for people with mental health problems? Secondly, is she taking seriously the review of the noble Baroness, Lady Corston, which has called for investment in alternatives to prison for women offenders, many of whom have mental health problems?

Baroness Royall of Blaisdon: My Lords, work is already under way on the assessment and diversion of those with mental health problems. We are also working on a training programme to improve mental health awareness throughout the criminal justice

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system. The review by my noble friend Lord Bradley will consider the recommendations of the excellent report by my noble friend Baroness Corston. His review will look at the diversion of women offenders, as well as of children and young people.

Lord Patel of Bradford: My Lords, in 2005, the commission reported, in its biannual report to Parliament, an apparent decline over the last 20 years in the use of mental health community treatment orders. Given that the prison population has around 15,000 people with a serious mental disorder, of whom only 1,000 get transferred to hospital each year, should we not be doing more about what appear to be insufficient court diversion schemes at local level or getting better guidance from the Government about community sentences?

Baroness Royall of Blaisdon: My Lords, the noble Lord is absolutely right: we could and should be doing more. This is precisely what my noble friend Lord Bradley will be looking at. He will report in the summer and I am confident that he will provide a rigorous report. He will also prepare a rigorous cost-benefit analysis, which will assist us in all our deliberations. I am sure that we will move very swiftly after that.

Baroness Murphy: My Lords, does the Minister agree with me that one of the great problems of the community order with a mental health treatment requirement is that it requires the individual to admit in open court that they have a mental disorder? Could the Government give some thought to how that problem might be addressed to make the take-up of those orders more realistic?

Baroness Royall of Blaisdon: My Lords, the Sainsbury report recognises that this is a problem. I am sure that it has to do with stigma, but clearly this is something that we have to look at. We are told that some offenders—although I cannot believe that they would rather go to prison than have a mental treatment order—would rather have a drug-related order than a mental health order, even if mental health is the root cause of their problems. This is precisely because of the problem of stigma, so we must address it.

Lord Ramsbotham: My Lords, before treatment can begin, someone with a mental health problem has to be assessed, whether they are in the community or in prison. As I understand it, the report of the noble Lord, Lord Bradley, is about diversion, not treatment or assessment. What steps will be taken to improve the assessment on which all this depends? Without it, diversion has no real effect.

Baroness Royall of Blaisdon: My Lords, assessment is absolutely key, as the noble Lord, with his wealth of experience, points out, but it is under the offender health and social care strategy that we are looking to deal with the problem of assessment. Clearly that will be allied to the report carried out by my noble friend. All these matters are interlinked.

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Baroness Barker: My Lords, 28 per cent of community orders with a mental health treatment element have been issued against people from black and minority ethnic communities. Does the noble Baroness agree that that seems disproportionate and seems to indicate a level of bias? Will the review of the noble Lord, Lord Bradley, look at bias towards people from black and minority ethnic communities in the criminal justice system?

Baroness Royall of Blaisdon: My Lords, at first sight it would appear to be disproportionate. However, the greatest percentage of these mental health treatment orders are provided in London, where perhaps there is a greater proportion of black and ethnic minority people than in the rest of the country. I am sure that that is something that my noble friend will take into consideration.

Earl Howe: My Lords, the offender healthcare strategy report published in 2005 stated that there is,

Is that still the case?

Baroness Royall of Blaisdon: My Lords, progress is being made. It is slow, but nobody can question this Government’s commitment to mental health in prisons and in the wider community. It is something that we have to continue working on so that nobody can question the fact that we are doing our utmost to ensure that people with mental health problems in the community, be they offenders or non-offenders, are dealt with properly.

Human Fertilisation and Embryology Bill [HL]

3.06 pm

Report received.

Clause 1 [Meaning of “embryo” and “gamete”]:

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham) moved Amendment No. 1:

The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak to the consequential amendments. There are 96 amendments in total, but they all have one straightforward effect, which is to change the umbrella term “inter-species embryo” to a more suitable term, namely “human admixed embryo”.

The research community and medical charities have made a considerable effort over the past 12 months to bring to the public and Parliament’s attention the need for embryo research using embryos containing both human and animal material. In particular, concerns have been raised about the limited availability of human eggs for use in creating embryonic stem cells. That has led to calls for the ability to use animal eggs in their place, which are in much greater supply.

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Both the pre-legislative scrutiny Joint Committee and the Science and Technology Committee of the other place have made inquiries into the ethical and scientific elements of this research. Both have made recommendations that this research should be permitted under regulation by the Human Fertilisation and Embryology Authority.

To enable promising avenues of research to be followed in this important field of embryonic stem cell research, we have set out in the Bill a framework of regulation for a number of embryo types which contain both human and animal material—embryos referred to collectively in the Bill as “inter-species embryos”. However, questions were raised in Committee in this House on whether “inter-species embryos” was the appropriate umbrella term for those part-human, part- animal embryos covered by the Bill.

A broad spectrum of entities can be created for research which contain both human and animal components. The Bill sets out a framework of regulation for those embryos defined in Clause 4 created using human and animal components where the resulting embryo in simple terms can be said to be towards the human end of that spectrum. That does not however cover the transgenic mice that are subject to Home Office regulation. It was suggested that an alternative term to “inter-species embryo” could be helpfully employed to make it clear that the Bill is not intended to apply to the whole spectrum of human, animal experimentation but only to those embryos that are predominantly human, resulting from modified human embryos or are the result of mixing human and animal gametes.

The term “human admixed embryos” has been suggested as a more accurate collective term to describe those entities, which the Bill seeks to bring clearly within the regulation of the Human Fertilisation and Embryology Authority. It was felt that the word “human” should be used to indicate that these entities are at the human end of the spectrum of this research. The term “mixed” was considered, but concerns were raised that such a term could be taken as referring only to those embryos that are a mixture of cells, such as chimera embryos, where the term also needed to include those embryos in which all the cells contain human and animal material but are genetically identical.

The term “admixed” is preferable as it does not lend itself to that sort of interpretation and is used in the chemical sciences to refer to a substance where two or more components are mixed in to each other. This term, developed in consultation with professional bodies such as the Academy of Medical Sciences, the Medical Research Council and the Wellcome Trust, allows for more focused debate on the research issues addressed in the Bill. This new term is more suitable by specifying that we mean human admixed embryos as opposed to animal admixed embryos, the use of which remains more appropriately within the regulatory oversight of the Home Office.

In addition, it was brought to our attention by the noble and learned Lord, Lord Mackay, that the drafting could be improved of the new Section 4A(1), which prohibits placing non-human embryos in a woman.

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In particular, the potential overlap between new Section 4A(1)(a) and new Section 4A(1)(b), as introduced by Clause 4, could cause confusion; an inter-species embryo covered by the prohibition in Section 4A(1)(a) is also an embryo other than a human embryo, as under Section 4A(1)(b). Whereas there is no legal problem per se, we agree on the further consideration that this could be clarified by a simple amendment. We have therefore tabled amendments to reorder new Section 4A(1)(a) for clarification. It is now clear that a human admixed embryo is a non-human embryo as far as the Bill is concerned, and is separately listed. The change removes any potential overlap, and so any confusion. Clause 4 continues to ensure that only human embryos may be placed in a woman.

I hope that these changes make our position clearer on the scope of what part-human, part-animal embryo research is subject to regulation under the Bill. I invite noble Lords to accept this amendment and I beg to move.

Lord Mackay of Clashfern: My Lords, this is a considerable improvement in the drafting of the Bill to make it clear that—as the noble Lord, Lord Darzi, made clear in his reply at Second Reading—it is not intended to cover the whole spectrum of inter-species embryos, but only what he described then, and again today, as the human end of that spectrum. The new phrase introduced by the Government in these amendments makes that clearer than before.

The noble Lord, Lord Patel, and I have tabled an amendment intended to encapsulate the phrase that the noble Lord, Lord Darzi, used about these being predominantly human embryos—in other words, not predominantly animal. We have put that in to fill in and cover the essence of the definition because at the moment, even with the change that the Government are proposing, there is no full definition. There is simply a list of four typical examples. The Bill would be improved if it were clear to the ordinary reader that it is talking about the predominantly human end of the inter-species embryo spectrum.

I am grateful also for the noble Lord’s clarification on the relationship between the clauses. I think this an improvement in the clarity of the Bill, showing what it is really intended to deal with. It would be even further clarified were the further aspects of the definition, to which Amendments Nos. 17 and 18 refer, also incorporated.

3.15 pm

Lord Tebbit: My Lords, I should like to follow the remarks of my noble and learned friend Lord Mackay. Could the Minister give us, in short terms, a clear definition of what is a human admixed embryo and what is an animal admixed embryo? I do not like the expression of something being towards one end of a spectrum or towards the other end; I am interested to know where the spectrum changes. There must be a clear point. At the very least, the Minister should define it for the House, even if it cannot be included in a list of definitions in the Bill, although I think that perhaps it should be.

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Lord Alton of Liverpool: My Lords, I support the point just made the noble Lord, Lord Tebbit, about the importance of clarity in the definitions in the Bill. For instance, on the issue of full hybrids—raised by my noble and right reverend friend Lord Harries at earlier stages of the Bill—if an admixed embryo is 50 per cent human and 50 per cent animal, how can we truly describe that as “admixed”? Is that not rather nonsensical? So is this not an attempt to cover a multitude of sins for the reasons described by the noble and learned Lord a moment ago?

There are some serious legislative points to raise at this stage. We have had a full scrutiny committee of both Houses that examined these questions in great detail. We have also had a very extensive four-day Committee stage as well as a Second Reading debate. However, despite some of the finest minds in the country applying themselves to this issue—we can go back to the debates in Committee and read the comments of many of the most celebrated experts in the field from some of the most prestigious organisations in the country—they said that in the time available, just some six weeks ago, they did not think it was possible to come up with a definition that could work. So here we are with a rabbit pulled out of the hat—or at least I think it is a rabbit because it may now be something altogether different, perhaps an admixed hybrid. I understand that the noble Lord, Lord Darzi, is making a genuine attempt to address the issue, but we have here 100 amendments tabled at this stage in order to insert the phrase all the way through the Bill. Surely the Procedure Committee would have something to say if any noble Lord from the Back Benches were to produce on Report a tranche of amendments that fundamentally altered the understanding some of us had of the Bill. Indeed, I know from an earlier discussion with one of my illustrious noble friends on these Benches that he is deeply puzzled by the failure to bring clarity to this most central issue.

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