Human Fertilisation and Embryology Bill [HL]

My Lords, I support the amendment put forward by the noble Baroness, Lady Knight. I want to concentrate on one single point: the human rights convention and Article 8 thereof. We are looking at three categories of cases; parents giving consent on behalf of children, consent where an adult lacks capacity and the use of existing cell lines. A Minister told us on 21 January that it was not possible to allow consent in all those cases as that would all be contrary to Article 8 of the human rights convention. The noble Baroness, Lady Knight, has referred to what the noble Baroness, Lady Royall of Blaisdon, said then. When the Minister dealt with existing cells—stuff that is already in the archive—she said: "““In essence, the Bill sets out a framework which ensures that, if a person’s gametes or cells are used to create an embryo, effective consent is in place beforehand. In the case of cell lines, 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. We have done a lot of work on this issue. It would also be incompatible with the Human Rights Act””.—[Official Report, 21/1/08; cols. 46-47.]" Later—and the noble Baroness, Lady Knight, has also referred to this—the Minister dealt with the other two cases, of children and adults, saying: "““No one can give consent on behalf of an adult who lacks capacity, and, for the same reasons, I do not believe that a child’s cells should be used to create embryos or human-admixed embryos without that child’s own consent.""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””." The noble Baroness, Lady Royall, then referred to the powerful arguments put forward by the noble Lord, Lord Patel, and by my noble friend Lord Walton of Detchant, but she concluded that, "““the Government take the view that we should not, in any circumstances, presume that a person’s cells can be used in the creation of embryos without their consent or knowledge””.—[Official Report, 21/1/08; col. 52.]" That position came on 21 January this year from a Minister speaking on behalf of the Government. Ten days later came the first sign of the U-turn, in a letter from the noble Lord, Lord Darzi. Making no reference whatever to the passages that I have just read, he sent a letter to all those, including myself, who spoke in the debate on the earlier stage of the Bill. The letter dealt entirely with the use of existing cells. The hour is late, but the noble Lord, Lord Darzi, made it clear that, since the debate on 21 January, the science community had been arguing why that valuable archive was a tool that they really wanted to use. From their point of view, I entirely understand what they were seeking to achieve. In his letter, the noble Lord began by saying that, "““further discussions with scientific researchers have more clearly identified the scientific need to use existing cell lines””—" so, there was more factual evidence. He continued: "““A compelling case has been made that the requirement for express consent could, in certain circumstances, impose a significant burden on research in this field. On this basis the Government takes the view that it would be possible to make an exception to the requirement for express consent, provided that stringent safeguards are in place. We would expect that such an exception would focus on situations where the inability to continue using existing cells would have significant adverse effects on research, where such research would be in the public interest. The detail of such safeguards to ensure compliance with Article 8 requires further consideration””." That was the first hint we got that there was going to be a change. It was followed up in paragraph 16 of his letter, which dealt specifically with the human rights situation. The noble Lord wrote: "““In considering whether the interference can be justified and proportionate to a legitimate aim the Government considered the concerns of the scientific community. Specifically the issue is whether the issue can be justified on the basis of ‘the protection of health’ under Article 8(2)””." We can see what has happened: the evidence from the scientists has come in, showing a ““scientific need””—a term the noble Lord used in the early part of his letter—and that is transmogrified and put forward here in altered garb as the protection of health under Article 8(2). That is how matters stood. Then we had the amendments in the other place, on which the noble Baroness, Lady Knight, has commented at length. I shall not go into the detail of that. The noble Lord, Lord Darzi, then wrote another undated latter, which we received just before today’s hearing. That letter does not mention Article 8 at all, but the Minister referred to the Explanatory Notes to the Commons Amendments—and if we look at them, ““scientific need”” comes back into the picture in paragraph 57. It states: "““Although removing the requirement for consent would interfere with this right””—" the Article 8 right— "““the Government is satisfied that, in the limited cases provided for by the amendments, such interference can be justified on the basis of scientific need. The amendments include significant safeguards””." The term ““public health””, which is used in paragraph 2 of Article 8, is not used at all but ““scientific need”” is. No argument is advanced at any point as to why all the hard work done before 21 January, which put the Minister in a position to say, ““This is not possible under the convention””, has been turned around to become very possible; an escape route has been found through the reference to health. If matters stood there one would be complaining about why we have had no straightforward explanation from the Government as to why they held the original opinion, and why they have now changed it. Are we to understand that they did not originally consider the possible exceptions to the basic provision of Article 8.2? Anyone advising on whether or not the article applies will look at the exceptions. However, the matter does not stop there. We have received an opinion, to which the noble Baroness, Lady Knight, referred, although I do not know how widely it has been circulated because I received it only yesterday. The opinion is that of a well known Queen’s Counsel, a Scottish silk who works in Edinburgh, whose work I have come across in other contexts, but I have never met him. He is a highly professional and skilled lawyer. He concludes, at paragraph 3.9 of his opinion: "““In sum it seems to me that the provisions dispensing with or substituting consent if passed could well be the subject to successful challenge for their incompatibility with the requirements of the European Convention on Human Rights””." In particular, he focuses on the charter of rights, which your Lordships will recall from the many days that we spent discussing the treaty of Lisbon and its adjunct, the charter of rights. It is a familiar text to us all. Article 1 of the Charter of Fundamental Rights states: "““Human dignity is inviolable. It must be respected and protected””." Article 3 on the, "““Right to the integrity of the person””," states: "““Everyone has the right to respect for his or her physical and mental integrity … In the fields of medicine and biology, the following must be respected in particular … the free and informed consent of the person concerned, according to the procedures laid down by law””." In addition, there is another convention, which the UK attended but did not sign, although 34 member states of the Council of Europe did, called the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine—also known as the Oviedo convention. It opened for signatures in 1997 and has now come into force as between the signatories. Some 23 nations have ratified the convention among the 34 which signed. The UK has not signed, as well as other countries, including Germany, Russia and one or two others. Most countries have signed. The provisions that matter are Articles 1, 2, 5 and 6. Article 1 states: "““Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine””." Article 2, ““Primacy of the human being””, is important. It states: "““The interests and welfare of the human being shall prevail over the sole interest of society or science””." The human being, the individual, prevails over the interests of science. Article 5, the ““General rule””, states: "““An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time””," which is contrary to the Government’s proposals. Article 6 on, "““Protection of persons not able to consent””," states: "““Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit””." In other words, all of those provisions are aimed at protecting the rights of the individual and are a direct objection to the proposal now being made. They add weight to my first contention that we do not know why the Government have changed their mind on the scope of Article 8. We have now received the opinion and provisions that I referred to, which we need to consider calmly, and send the matter back to the other place.