Human Fertilisation and Embryology Bill [HL]

moved, as an amendment to the Motion, Amendment No. 92A, leave out ““agree”” and insert ““disagree””. The noble Baroness said: My Lords, there can surely be no dispute that the subject we are debating, touching as it does on life and death, conscience and ethics, with the losing of freedoms and rights that we once thought were ours without question thrown in, is one of monumental importance. I am not alone in the view that, in a matter of such gravity—and there can be few subjects of greater gravity—this House and the other place should have been granted more time to debate and consider exactly what we are being asked to sanction in what is before us. Amendment No. 92 is very long indeed. It stretches over six and a half pages and its very first words have a shadow of menace when they refer to: "““Cases where human cells … can be used without consent of person providing them””." This amendment is the main amendment allowing researchers to create cloned human or animal-human embryos from a person’s cells without their consent. In its new and extended guise, it has never been debated on the Floor of either House until now. Until now, it has been the common view that one’s body is one’s own and others have no right to take it over against one’s will. I am prepared to believe that, buried in various places in this lengthy amendment, there might be some good and just measures. However, because of the extremely limited time allowed to us for investigating and debating this possibility, I felt that there was nothing for it but to seek to delete the whole amendment; not only to preserve the rights that should be ours, but to bring more clarity and purpose to the Bill. That is why I challenge the whole of this sinister and unwieldy provision. More time might have permitted some parts of it to be agreed, but we shall never know. Sub-paragraph (2) of new paragraph 15A states that permission to use a person’s cells can be granted because the patient was, "““likely to develop, a serious disease””." Well, any one of us might become seriously ill at any time. None of us can bet that we will not. Surely, only a medically qualified person in full possession of our physical record and details of our parentage can say with any authority that anyone is likely to become ill. As I understand it, the decision on whether that person is likely to become ill will not be made by a doctor or a nurse or anyone medically qualified, but by a researcher. However, a researcher is surely anxious to go ahead with his or her research. I can envisage the temptation to get the raw materials by the simple means of expressing the view that the patient might get ill. Why is there no sanction of a doctor’s opinion? All that seems to be necessary in the case of an under-18 year-old is parental agreement that the patient might get ill. That is not enough. If the young person in the frame were not competent to deal with the issue of consent for the use of his body, no one should believe for one moment, or act on the premise, that that person does agree; he has never been asked the question. People who are mentally or physically incompetent should be protected, not used against their will. I have spoken previously in this House about the use of the word ““reasonable””. I have vivid memories of my time in another place, where Ministers refused to have that word in legislation because it meant all things to all men. What is reasonable to one person may be totally unreasonable to others. The word is sloppy and unclear and should be avoided. However, it comes up eight times in this amendment alone. This brings me to another point. In sub-paragraph (2) of new paragraph 15D, it says that the researcher must take ““reasonable steps”” to identify a person who is engaged in caring for a patient, or who is interested in the patient’s welfare. The patient in this case is an adult who is said to be lacking capacity. Well, anyone can say that they are interested in a person’s welfare. I am interested in the welfare of all noble Lords: I can sincerely say that. Anyone can allege that they are caring for somebody else. A researcher anxious to begin his research may take the easy option by accepting statements to this effect, which this amendment permits him to do. Why is this so casual? Why is the researcher not required to check or to get proof of what is being said? If there is no adult at all whom the researcher can claim to be responsible for the incapacitated person, then, according to the amendment, the researcher must take reasonable—there is that word again—steps to find someone or other who will take responsibility. If such a personage does not come easily to mind, the researcher can choose someone else. He is allowed to choose someone who will allege that he is interested in the patient, but surely he can shoo in anyone at all to say that. It is not enough to state that the person must have no connection with the project. He or she, chosen by the researcher, could very easily be the researcher’s husband, wife, friend or aunt or someone working in the same laboratory on another subject. There is no problem there. That colleague would not need to be told the rhyme or reason for the use of the cells, as he would know that already; nor surely would he be likely to stand in his colleague’s way. There is no requirement whatever for him to know anything at all about the patient or the views of the patient; he would just need to say something in front of his fellow researcher. Sub-paragraph (3) of new paragraph 15G makes it possible, just because there is a supposition that an individual is dead, to permit the use of that person’s cells for what he or she may have regarded as a repugnant purpose. Surely that is also wrong. If we accept that, surely we are saying that a person’s body may be used in any way once he is dead. That has always been opposed. So far as I know, no one has ever said that it would be right to use a cadaver in any way that a person wished, and the thought that we are now asking to do so concerns me greatly. Again, surely it would be wrong to claim that, just because a person who may or may not be dead never said that he did not want his body to be used to create half animal/half human embryos, he would not mind if such a thing were done. Even if that person had agreed that his body parts could be used after death for transplants to help sick people, that is a very long way from agreeing that those parts should be utilised to make animal/human embryos. This is a matter on which many people have strong views, and I claim that they have every right to them. In fact, sub-paragraph (1) of new paragraph 15G does not require that the research be medical but simply scientific, and scientific research goes much wider than medical research—far beyond the straightforward pursuit of curing disease. If I read new paragraph 15G carefully, it suggests that ““any”” of the conditions listed will be sufficient for the authorisation of research, and I ask the Minister whether that is correct. Will just one of them be sufficient or is it necessary to accept that they are all relevant and applicable? As I understand it, the whole of Amendment No. 92 has been acknowledged by the Government as interfering with Article 8 of the European Convention on Human Rights. In fact, the present Leader of the House, in an earlier incarnation as a Whip with responsibilities towards this Bill, said: "““If a child is incapable of giving consent to the creation of a human or human-admixed embryo themselves, because they are too young to do so, it would be wrong for any person, including the parents, to make that decision for them, given the significance of creating an embryo using their genetic material””.—[Official Report, 21/1/08; col. 52.]" The noble Baroness the Leader of the House also said that, "““even though the original cells may have been taken from the donor with their consent to research in general, the use of their genetic material to create cloned embryos or human admixed embryos is exceptional, and requires its own express consent. To provide otherwise would be incompatible with the convention rights ... It would also be incompatible with the Human Rights Act””.—[Official Report, 21/1/08; cols. 46-7.]" I have the greatest respect for the integrity and sincerity of the noble Baroness, Lady Royall, and I have absolutely no doubt that she meant every word that she said. However, since then, the Government’s position has changed. They now claim that, after all, this is justified. But is it? Queen’s Counsel Mr Aidan O’Neill, who has been asked to provide a legal opinion on the matter, agrees with the Government that the use of human cells for the creation of human embryos and/or human admixed embryos does indeed engage the Article 8 rights of the donor. He also agrees with the Government that removing the requirement for consent would interfere with this right. However, his legal opinion is that the provisions before us today in this amendment are not compatible with the convention because they do not give proper weighting to the interests of those whose genetic material is now being used. The scientific need for these provisions on consent has, so far as I know, never been demonstrated. So far as I am aware, there is not a shred of evidence that creating animal/human creatures will bring about cures or even palliatives to assist sufferers from recognised diseases. If Ministers are serious about adhering to the important human rights convention, they simply cannot pass this part of the Bill. I listened with great care to what was said earlier in the debate on that very matter, but the question which has not been addressed until now is that it may well be in direct contravention of human rights. Every human being has a right to decide whether he or she supports creating cloned human or animal/human embryos from their cells for research, and he or she permits his or her own body to be used in that way. Unless we are ready to deny this right, we cannot allow Amendment No. 92 to pass into law. Removing these consent provisions will return the Bill to the state that it was in when it previously left the House. It is a serious misuse of Parliament to curtail debate and proper investigation into this vital matter, but that is what is happening at the moment. I was shocked to hear that so strict was the curtailment that MPs in another place were given no time at all to debate on the Floor of the House the amendments dealing with consent. I earnestly hope that the Government have put no Whip on their Members and that they do not troop into the Lobby to vote against this amendment without having listened to the arguments, but I fear that such a Whip is in existence. If human rights mean anything to the Government, they must not allow them to be trampled on to please one section of scientists, however well intentioned. Finally, so little time has been available for public knowledge to be disseminated about this debate that so far very few comments have had time to surface. However, I want to quote Professor David Jones, who is the director of the Centre for Bioethics and Emerging Technologies—which are very important in this context—St Mary’s University College. He says that this is retrospective legislation, allowing the use of tissues that were not donated for that purpose. I do not think that we have touched on his concern. He says that it would be very counterproductive to allow the most controversial kind of research without the safeguards of effective consent. How can people trust scientists, if their cells can be used without their consent for research to which they are strongly opposed? If effective consent is not restored to the Bill, there is a real danger that public confidence in tissue banking will be undermined, to the great detriment of scientific research. I have no wish whatever to halt or harm scientific research. I do, however, deeply care about the rights of human beings. I beg to move.